Opinion
June Term, 1828.
From Johnston.
1. New trials for surprise can only be granted in the Superior Courts, and a refusal to grant one, being the exercise of a discretionary power, cannot be examined upon appeal.
2. Notice to a particular agent to take the deposition of a nonresident witness to be read absolutely is not supported by a rule authorizing notice to that agent to take the deposition of the same witness de bene esse, the witness being at the granting of the rule a resident of this State.
THIS was an issue of devisavit vel non as to the supposed will of one Burchet Lee. The cause originated in Sampson and had been removed to Johnston.
W. H. Haywood for the plaintiff.
Badger contra.
On the trial the plaintiff offered to read absolutely the depositions of one John Lindsey, taken in the State of Tennessee, which was objected to by the defendant, as the notice of taking it had not been served upon him, but upon one Caleb Lindsey, who was not a party to the suit. In order to justify the notice to Caleb Lindsey, the plaintiff produced the following rule of Sampson Superior Court: "Ordered, that a commission issue to take the deposition of John Lindsey, on giving Caleb Lindsey twenty days notice. Deposition to be read de bene esse." But his Honor, Judge Martin, thinking that the order was intended for taking the deposition of a resident witness, to be read only de bene esse, and not that of a witness residing in another State, to be read absolutely, rejected the deposition. Whereupon the plaintiff submitted to a verdict against him, John Lindsey being the subscribing witness, and moved (465) for a new trial, first, on the ground of surprise, and secondly, because of error in rejecting the deposition. His Honor discharged the rule, and the plaintiff appealed.
It is argued that the judgment in this case be reversed, first, on the ground of surprise; secondly, because the deposition of John Lindsey was improperly excluded.
Upon the first ground this Court cannot act; it is matter addressed to the discretion of the judge below, over which we have no control. As to the second ground, we concur in the opinion of the judge that the deposition ought to be rejected. Notice to take it ought to have been served on the parties or on their agent. It does not appear that Caleb Lindsey was either their general agent or agent to receive notice to take this or any other deposition, except that of John Lindsey, de bene esse, under a rule made in Sampson Superior Court while the cause was there. The rule was special and contemplated the taking of a deposition of another character and at a different time and place from the one offered.
PER CURIAM. Judgment affirmed.
Approved: Wall v. Hinson, 23 N.C. 276; Thomas v. Myers, 87 N.C. 31.
(466)