Johnson v. Hall ( 1905 )

Truly, J.,

delivered the opinion of the court.

None of the assignments of error possess any merit. It has been heretofore decided that Code 1892, § 1764, is a restrictive, not an enlarging, statute. Dickerson v. Askew, 82 Miss., 436 (34 South. Rep., 157).

The instant case clearly does not fall within its scope; but if it did, appellants did not bring themselves within its terms. There was no agreement in writing to have the witnesses examined in open court, nor was the notice to that effect filed “before any depositions have been taken,” as required by the statute. The notice was filed o-n October 16, 1903, while the certificate of the commissioner shows that the taking of depositions commenced on March 13, 1903. Hence, it was not error to refuse to permit the oral examination of certain witnesses when the cause came on for final hearing.

The action of the chancellor in permitting certain pension affidavits to be introduced in evidence, if error at all, does not constitute reversible error under the facts of this record. At most, they were but cumulative evidence of slight probative force, and the case of complainant had already been clearly proven by testimony of indisputable competency. The case made by the record is simply a bald, palpable, brazen attempt to defraud an ignorant woman of her home by a trick. Such a transaction could never be upheld by any court of conscience.

The decree is affirmed.