Nace v. Neff College of Oratory

Opinion by

Head, J.,

Among the rules of the court of common pleas from which this appeal comes is the following: “Depositions of parties and witnesses, without regard to the circumstances of their being aged, infirm or going witnesses, may be taken in advance of trial only upon an order of the court upon notice and cause shown.”

The plaintiff presented her petition setting forth that one B. W. Peck was a material witness without whose testimony she could not safely go to trial and that he resided in McConnellsburg, Pa., nearly 200 miles from Philadelphia. Upon these averments alone she asked for and obtained a rule to show cause why the deposition of the witness named should not be taken at McConnellsburg. To the rule an answer was filed pointing out that no legal cause for taking the deposition had been shown; that the defendant would thereby be unwarrantably subjected to hardship and expense, etc. The court made the rule absolute. The deposition was taken and, on the trial, was offered, admitted and read, against the objection of the defendant. The propriety of this action of the learned trial court is the sole question raised by this appeal.

It will be observed it affirmatively appears that the witness was a resident of Pennsylvania. His personal attendance at the trial could therefore have been secured by the ordinary writ of subpoena. It is not alleged that he was aged, infirm or about to leave the state, or that for any other reason the plaintiff was in any danger of losing his testimony unless his deposition were taken. No cause is assigned for departing from the ordinary and important rule that requires a party litigant to produce his witness in open court where he may be both seen and heard by the trial tribunal, save only in the fact of his residence in a county of the state other than that wherein the cause was pending.

If authority be needed to prove the existence of the general rule just stated it will be found in the recent case of International Coal Mining Co. v. Penna. R. R. Co., 214 Pa. 469. There Mr. Justice Brown elaborately reviews the entire question and points out that no right to take depositions in a pending cause existed at common law; that courts of equity, in exceptional cases, guardedly recognized such right only in the interest of justice and to prevent the probable loss to a party of all important testimony; and that such right, even under the modern Pennsylvania statutes, is still exceptional and can be properly exercised only under such conditions as bring the case within the operation of the principle on which alone such right has been recognized. The following brief excerpts from that opinion will be sufficient for our purpose. “At common law a commission could not issue to take the testimony of witnesses de bene esse in any case: 3 Bl. Com. 383; Story’s Eq. Jur., sec. 1514. The practice of taking testimony out of court comes to us from the chancery courts, where, in administering justice, the rules of the common law were found to be deficient. . . . When, in view of the condition, circumstances or conduct of a witness, his testimony may be lost to the party needing it, if not taken in advance of the trial, it ought to be so taken, but as courts of equity have not gone beyond this, it is the limit for courts of law. . . . In the regular and orderly trial of a cause witnesses appear in open court, and jurors, seeing as well as hearing them, pass upon their credibility. Exception to this wise rule of the common law, must be based upon some necessity requiring it to be disregarded in the interest of justice.”

The universally accepted rule that the appellate courts of this state, in their final review of causes, will accept as established, the facts found by a jury, referee or chancellor by whom the witnesses were seen and heard, is neither meaningless nor arbitrary. It rests upon a conviction of the wisdom of the common-law theory that a witness speaks not merely by the words he utters, but by his eye, his tone of voice and all of those visible manifestations that are regarded as indicative of candor and intelligence or the lack of them.

It is of course true that a wide discretion should be accorded to trial courts in the construction of their own rules. But where, as here, the record exhibits fully the ground on which action was based, *we must determine whether such action was according to law. As we view it, the mere fact that the witness lived outside of Philadelphia county, was no legal cause why his deposition should have been accepted instead of the evidence demanded by the common law, to wit, that delivered by him in the presence and hearing of the court and jury.

Judgment reversed and a venire facias de novo awarded.