Thomas v. Irvin ( 1891 )

Burton, J.

The defendant, upon notice, took and filed the deposition of the complainant, Thomas. The matters about which he was chiefly examined were as to transactions and conversations with the testator, John Irvin. Afterward defendant gave notice that he would not read the deposition thus taken, and would object to its being read by complainant. Upon the hearing of the cause, the deposition thus taken was offered by complainant as evidence for himself. Specific objection was made by defendant to all questions relating to transactions or calling for conversations with the testator. These objections were overruled and the answer admitted. The ruling of the learned Chancellor was correct. This evidence was competent, if the defendant chose to make it so by waiving objection or by calling upon complainant to testify. This he did when he took and filed his deposition as proof for himself. It was competent evidence when thus taken by 'defendant, and if the defendant failed to read it upon the hearing, then complainant had a right to use it as his own proof. Complainant had been “called” under the statute to testify by the opposite party, and the evidence thus taken made competent by the statute. It was too late to thereafter interpose an objection which had been waived by the act of requiring the complainant to testify as provided by the Act rendering such evidence otherwise incompetent. Any other construction of the statute would enable one party to search the conscience of his adversary, drag to light his papers and other evidences, and then repudiate the result if the experiment proved unsatisfactory. The legitimate consequence of thus examining complainant as to matters about which he was disqualified unless examined by his adversary, was to make the evidence thus elicited competent for either party. The case is not like that of Beaty v. McCorkle, 11 Heis., 593, nor that of Topp v. White, 12 Heis., 182. The evidence, when taken and filed, was competent, being made so by the disqualified witness having been, under the statute, “called by the opposite party.”

The other questions in the case, being purely of fact, were disposed of by an oral statement, and the decree affirmed.