Citation Numbers: 30 Tenn. 89
Judges: Lyon
Filed Date: 9/15/1850
Status: Precedential
Modified Date: 7/30/2022
delivered the opinion of the court.
This cause was transferred by change of venue from Washington to Johnson county, to try an issue of devisavit vel non. On the trial of the cause, the plaintiff below offered to read to the jury the depositions of Robert G. Hale, Sarah Hale and Elizabeth Jane Hale, subscribing witnesses to the paper propounded as the last will and testament of Loyd Ford, deceased. To the reading of these depositions, the defendants ob
In the further progress of the trial and when the deposition of the witness Robert G. Hale had been read, at the close of his examination in chief, and before the cross-examination in his deposition commenced, the defendant below proposed to introduce this witness and substitute his cross-examination in open court for the cross-examination in the deposition, and the court was asked to give an opinion as to the effect of the introduction of the witness by the defendants — whether in fact he thereby became their witness. The court decided to allow the witness to be introduced at this stage of the proceedings but declined to give any opinion on the point requested. The defendants declined to introduce the witness, and excepted to the action of the court in refusing to give the instructions requested.
The jury found a verdict that the paper propounded for probate is the last will and testament of Loyd Ford, deceased, and the court refusing to set aside this verdict and grant a new trial, the defendants appealed in error to this court.
The questions now raised by the record for the determination of this court, are;
1. Did the Circuit Court err in admitting these depositions to go to the jury, the deponents having been summoned by the adverse party and being in attendance ?
The witnesses at the time their depositions were taken, resided in Washington county, and it is admitted, there is no irregularity in the depositions or in the manner of taking them. But it is insisted that the proviso to the 3d section of the act of 1817, ch. 189, Scott’s R., p. 440, authorizing the
We do not perceive that any inconvenience can arise from
2. The Circuit Court was clearly correct in declining to give in advance, any opinion as to the effect of the introduction of the witnesses by the defendants. Inconveniences would manifestly spring from such a practice. If the Circuit Judges were required to give opinions upon abstract propositions which might be submitted to them in the progress of a trial, it would be equally the duty of this court to revise and correct such opinions, and we can readily see, that causes might be frequently brought here by appeal or writ or error upon points which in fact were not involved in the court below.
There is no error in the record, and the judgment must be affirmed.