Hatton v. McClish

Mason, J., delivered the opinion of this court. There are two modes by which notice may be given of the execution of a foreign commission to take testimony. One is, actual notice, to be given directly by the commissioners; the other is constructive notice, and results from the filing of interrogatories in the office of the clerk before the commission goes out. The object of this notice is to enable the opposite party to file cross-interrogatories, and in either case the notice must be given a reasonable time before the testimony is taken.

In the case now before us, the defendant had both actual and constructive notice of the time and place of the execution of the commission, but in each instance it is denied that the notice was sufficient in point of time. ⁴¹⁵ We need not decide whether the actual notice, or that given by the commissioner, was sufficient or not, as we regard the constructive notice fully sufficient in point of law. At the November term of the court, the commission was ordered by consent of parties. On the 10th February following the plaintiff filed his interrogatories, and on the 24th of the same month the commission issued, but the precise time of its going out of the office does not appear from the record-. The counsel on both sides have assumed, that it was necessary for the commission to lie in the office a certain time before going out, in order that the notice resulting from the filing of the interrogatories could be availing.

We find no authority nor any sound reason for such an assumption. None of the cases on this subject advance such a notion. They all state that the interrogatories should be filed a reasonable lime before the commission goes out; from which it would appear that the precise lime when it was issued, or how long it had remained in the office after it was issued, were circumstances wholly immaterial: Parker vs. Sedwick, 5 Md. Rep., 281, and the cases there cited. We can discover no good reason why it should be otherwise.

The commission, itself, furnishes no-material information to the opposite party other than he had already received from the order of the court directing the commission to issue. The facts suggested by each are the same, and are simply the names of the commissioners, the place to which the commission issues, and the parties to the suit. The balance of the commission is usually mere matter of form. The interrogatories furnish the material and only information necessary to enable the adverse party to file his cross-interrogatories, if he deems any important, and if they remain in the office a reasonable time before the commission goes out, it will be sufficient.

In this case they were filed on the 10th of February, and the commission having been issued on the 24th, did not of course go out before that day. This was notice enough, the theory being, that notice will be presumed where the interrogatories have remained a sufficient time in the office before the commission previously ordered by the court goes out. As the practice upon this subject has been somewhat loose ⁴¹⁶ and uncertain, we will take this occasion to suggest to the different courts of the State the propriety of adopting some rule of court, fixing a time within which the interrogatories of the party applying for the commission should lie in the clerk’s office before the commission goes out, in order to create presumptive notice; or, requiring the party actually to serve’ a copy of the interrogatories upon the opposite party in time to enable him to file his cross-interrogatories. Besides the question we have just considered, the first except tion shows that the answers of the several witnesses to the third and fourth interrogatories were objected to, and the objection overruled by the court.

The record shows, that of the four witnesses examined under the commission, only one, (Crawford,) professed to know anything in regard to the information sought to-be elicited by the third and fourth questions, and he only answered the fourth. Surely, a response by a witness to an interrogatory, that he knows nothing of the matters therein referred to, is riot liable to objection. The objection then can only relate to the answer of Crawford to the fourth question. By reference to that answer it will readily appear, that much of it was legal and admissible, and though the balance may not have been, yet as the whole was objected to, the court was right in not sustaining the objection.

The same remark is applicable to the general objection to the whole testimony returned wjth the