Morales Figueroa v. Valdes Cobián , 8 P.R. Fed. 253 ( 1915 )

HamiltoN, Judge,

delivered tbe following opinion:

This comes up upon a motion by tbe plaintiff to take tbe deposition of Francisco Berrios,at Bayamón on Monday next, November 15, at 2 o’clock p. m., notice having been served upon tbe defendant. Tbe affidavit filed in support of tbe motion is by one of tbe attorneys and shows, upon information and belief, that tbe witness is about to die. Tbe defendant resists the taking of the deposition at the time suggested because his attorney will be in another court at that time, and because, he says, the witness is no more in danger of death at the present time than for six months past. Application is made under § 863 of the Revised Statutes, Comp. Stat. 1913, § 1472.

That section provides for taking the deposition de bene esse of a witness in a civil case pending in a district court, “when he is ancient and infirm.” The statute requires that “reasonable notice must first be given in writing by the party or his attorney proposing to take such deposition, to the opposite party or his attorney of record, as either may be nearest, which notice shall state the name of the witness and the time and place of the taking of his deposition.” It is also provided that “any person may be compelled to appear and depose as provided by this section in the same manner as- witnesses may be compelled to appear and testify in court.”

1. It would seem clear that the word “infirm” applies to this case. A witness who is about to die is infirm in the highest degree. The reason of the law is not to be confined merely to persons who cannot get about.

2. The defendant resists the application mainly upon the ground that the notice is not reasonable. This, however, is hardly applicable. If a witness is about to die, a very short notice will be reasonable. It may be a question of hours, rather than days, and the section must be so construed as to cover the object it has in view, that is to say, securing evidence from witnesses unable to attend court. The true objection to the application is that there is no proper showing that the witness is about to die. The hearsay affidavit is not a good foundation for an application of this kind. It must be made by some one knowing tbe facts, and in tbe matter of life and death, as is suggested bere, should preferably be made by a competent physician.

It being agreed upon argument that tbe parties could be present to take tbe deposition on Wednesday, tbe llth, an order will be entered that leave is granted under tbe statute to take tbe deposition of tbe proposed witness at that time and place, reserving tbe right'in tbe court in case of emergency, due to tbe health of tbe proposed witness, to make tbe time shorter if necessary.

It is so ordered.