I agree with the statement in the majority opinion that the Court of Appeal, in the absence of any formal complaint by the appellee, was powerless to change the judgment of the district court from one of nonsuit to one rejecting plaintiff's demand. If the decree merely ordered the Court of Appeal to modify its judgment in that respect, I would concur in it. But the decree goes further than that and annuls the judgment, ordering the Court of Appeal to review the ruling of the district court, which the opinion indicates is erroneous, excluding plaintiff's deposition.
My own conclusion is that the ruling complained of is correct. The record shows, as I understand it: That the defendant Costley never received any consideration whatever for his check, which he delivered to one Robert A. Davis, who was to hold it until a certain business organization was formed. That Costley, after delivering the check, reconsidered his action and the same afternoon notified Davis that he would not proceed with the matter and requested the return of the instrument. That Davis refused to comply with Costley's request and hurriedly sent the check to the plaintiff, Hawkins, a resident of Arkansas, who deposited it for collection, which, however, was not made, because Costley, in the meantime, had stopped its payment.
Costley sets up by way of defense to plaintiffs action that Davis forwarded the check to Hawkins solely for the purpose of giving the instrument the appearance of being held by an innocent third person, whereas Hawkins *Page 238 had actually never parted with anything of value for the check, and had merely deposited it for collection in order to assist Davis in wrongfully securing money from the defendant.
It is stated in the brief filed on behalf of Costley that he had attempted to take the testimony of Hawkins by commission, but that the commission had been returned unexecuted because Hawkins could not be located at El Dorado, where he resided, and where he had deposited the check for collection. But, however that may be, it is certain that Hawkins presented himself as a witness in his own behalf in Arkansas and gave his deposition, which was returned to the city of New Orleans. It is certain, also, that Costley was unable to procure the testimony of Davis on the trial of the case, because each time the case was fixed Davis could not be found, although he was duly subpœnaed as a witness by Costley.
The record is not entirely clear as to what actually happened on the trial of the rule taken by plaintiff's attorneys to have plaintiff's deposition read in evidence. It is plain, however, that defendant's attorneys were present in court and opposed the motion. It is also plain that the court reserved the right of the defendant Costley to object to the testimony.
It is thought by the majority of the court, as set forth in their opinion, that the qualification mentioned in the judgment on the rule to read the deposition refers only to such objections as are not founded on irregularities or informalities in the execution of the commission. The best evidence of what the qualification was intended to mean, I respectfully suggest, is ascertainable from the subsequent ruling of the judge who had rendered the judgment, when the deposition *Page 239 was actually offered in evidence on the trial of the case on the merits. The judge, at that time, maintained the objection of Costley's attorneys that the witness had not fairly and fully answered the cross-interrogatories propounded nor produced and attached certain documents called for by the defendant to the deposition, and excluded plaintiff's testimony. This ruling was followed by that of another judge of the same court, to whom the case was transferred, when plaintiff again attempted to offer the deposition in evidence over defendant's objection.
Costley, who had charged plaintiff with fraudulently conspiring with Davis to mulct him out of his money, was entitled to a full and fair disclosure by plaintiff of his connection with the transaction, together with all the related documents. Plaintiff, on the other hand, if his conduct was open and above board, and he is actually the holder in good faith and for value of the check sued on, should have welcomed the opportunity of clearing himself of all wrongdoing in the matter by a full and candid statement of his connection therewith. The judgment of nonsuit rendered by the district court was fair to both parties, protecting Costley from the effect of an incomplete deposition, and preserving plaintiff's rights to reinstitute his suit and correct on the second trial of the case the defects in his deposition. This was clearly the intention, in my opinion, of the district judges who passed on the issue, and I think that intention was, on the whole, incorporated in the record of the case. In these circumstances, conceding the doctrine announced in Anderson v. Dinn, referred to in the majority opinion, is correct, I do not think that decision has any application here.
I therefore respectfully dissent from the majority opinion and decree herein. *Page 240