Whitcomb v. Stewart

Decided November 15, 1848

Indiana Supreme Court · decided 1848-11-15

Assumpsit by John R. Whitcomb against Hugh Stewart, for goods sold, The only question before this Court, was whether the deposition of one George Stewart was properly admitted in evidence. The plaintiff had previously instituted a suit in the Vermillion Circuit Court, against the defendant and one TJ-ndes, for the same cause of action now sued upon, in which the plaintiff was non-suited.

Decided 1848-11-15

¶1Held,

(Judge Perkins

¶2delivering the opinion of the Court) that the deposition was improperly permitted to be used. That under the provisions of the statute authorising depositions taken in a former suit to be used upon a second trial, it should have been proved that the deposition “ had been duly filed in the Court where the previous cause was pending ” and that it had there “ remained on file from the time such suit was discontinued, until the time ” when it was taken to be used on the trial of this suit. R. S. pp. 723 — 724.

¶3Whether the certificate of the clerk, had it been sufficiently full, would have been evidence of the facts stated in it, querré 1

¶4Judgment reversed, &c.