Cases argued and decided in the Supreme Court of the State of Texas, during the latter part of the Galveston term, 1884, and embracing the greater part of the Austin term, 1884. Volume 61. Page: 8
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8 G., C. & SANTA FE R'T CO. V. EVANSIOH. [C(alv. Term,
Opinion of the court.
There is nothing in the record showing what the testimony of the
witnesses, as contained in the depositions, was, nor what the -witnesses
summoned, but not used, were summoned to testify to. In
the absence of such showing we might presume that the court below
heard evidence upon those matters and found the facts to be such
as properly sustained the ruling made. Ponton v. Bellows, 13 Tex.,
254.
If, however, the ruling of the court was made upon the motion
and facts appearing of record in that court, we are of the opinion
that the court did not err. The statute gives a party to a suit the
right to take the deposition of a witness, although he may reside
in the county in which the suit is pending, and it also gives the
right to have the witness in court.
Cases may arise in which it may be apparently necessary for a
party to a suit to take the deposition of a witness in order to preserve
his testimony, as in case of a very aged or feeble person, and,
considering the uncertainty of life, it would be a wise precaution in
any case.
The deposition of a witness, when taken, from want of skill or
care in the officer taking it, or from failure of the witness fully to
comprehend interrogatories, may be defective in its statements, or
the statements made in it may show that the witness is in possession
of material facts which he was not known to possess at the
time interrogatories were propounded to him. In such case it would
certainly be the right of a party to perpetuate the evidence which
he has taken by deposition, and this at the expense of the adverse
party, if judgment is ultimately rendered against him, and also to
bring the witness before the court and there examine him upon the
whole case. In such case the fact that a deposition had been taken
ought not to prevent the recovery of the entire cost of deposition
and witness.
He that forces another to law cannot complain if the entire costs
of perpetuating and bringing before the court, in the most enduring,
effective and favorable manner all the evidence there is against
him is imposed upon him if judgment shall go against him.
The advantage of having a witness on the stand, where full and
complete examination can be made by counsel accustomed thereto,
cannot be too highly appreciated. It is the most effective method
of eliciting all the facts to the witness known, and we are of the
opinion, when it is done in good faith, although a deposition has
been taken to perpetuate the evidence, that it is the right of a party
to call the same witness to testify upon the stand, if in his judgment
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Texas. Supreme Court. Cases argued and decided in the Supreme Court of the State of Texas, during the latter part of the Galveston term, 1884, and embracing the greater part of the Austin term, 1884. Volume 61., book, 1903; St. Louis, Mo.. (https://texashistory.unt.edu/ark:/67531/metapth28513/m1/24/: accessed April 17, 2024), University of North Texas Libraries, The Portal to Texas History, https://texashistory.unt.edu; .