Phipps v. Caldwell , 48 Tenn. 349 ( 1870 )

Deadebick, J.,

delivered the opinion of the Court.

This is an action of trespass, instituted against the plaintiff in error, for the alleged illegal taking of one negro girl and two horses, the property of the defendant in error.

At February Term, 1868, verdict and judgment was rendered against defendant below, and a new trial having been refused, he appealed in error to this Court.

There were pending in the Circuit Court two suits against the plaintiff in error, at the same time, to-wit: this cause and a suit of one George Farmer. Each of the plaintiffs below gave Phipps notice that he would take depositions of certain witnesses on the same day and before the same commissioner.

The depositions were accordingly taken at the time, and before the commissioners designated in the notice. They were all taken under the same caption, having but one certificate.

The caption recited that part of the depositions were to be read in one of said causes, and others were taken, to be read as evidence in the other of said two eauses.

Thus all the depositions constituted but one file, and upon this ground they were excepted to; the exception was sustained by the clerk; but upon appeal, was disallowed by the Court, and the depositions were allowed to be read upon * trial of the cause, to which defendant below objected.

Such a practice we hold, should not be tolerated. All our statutes, upon the subject, evidently contemplate that the depositions in each cause, pending in court, should be taken in and filed with the other papers in that cause.

The case of a change of venue in one of two causes pending in the same court, in which a deposition may have been taken, clearly illustrates the mischievous consequences, which must necessarily result from, such a practice. We hold, therefore, it was error to allow a deposition, taken in two distinct causes, to be read in either of said causes.

The judgment of the Circuit Court will be reversed, and the cause remanded for a new trial.