p. 520Use of Charles W. Jefferson, the State of Delaware, vs. Harry J. Stidham and United States Fidelity and Guaranty Company. (January 14, 1920.) Conrad and Heisel, J. J., sitting. Superior Court for New Castle County, January Term, 1920. Summons Case, No. 136, September Term, 1918.
Headnote
Depositions—Testimony of plaintiff may be taken on commission.Application for an order for taking testimony of plaintiff in his own behalf before a commissioner to be appointed by the court will be granted, as against objection that constitutional provisions for taking testimony on commission do not apply to parties in suit; affidavit attached to application stating that plaintiff is 81 years old, is paralyzed in his right arm, and for several months has been confined to his room, and will be unable to attend the trial.
George N. Davis for plaintiff.
Reuben Satterthwaite, Jr., for Harry J. Stidham.
Action by the State of Delaware, to the use of Charles W. Jefferson, against Harry J. Stidham and another. On application of plaintiff for an order to take his deposition in his behalf on commission de bene esse.
Order granted.
Application in writing was made'to the court by plaintiff’s attorney, based upon affidavit of plaintiff’s wife for an order for taking testimony of plaintiff, on his own behalf, without written interrogatories filed, upon oral examination and subject to cross-examination and re-examination, before a commissioner to be appointed by the court.
In the affidavit attached to the application, the affiant deposeth and saith:
“ That she is the wife of Charles W. Jefferson, that the said Charlse W. Jefferson is the plaintiff in the above-entitled cause, and that the said Charles W. Jefferson is 81 years of age, and is paralyzed in his right arm, and that for several months prior to the date hereof has been confined to his room, and that by reason of his said age and bodily infirmity, the said Charles W. Jefferson would be unable to attend as a witness at the trial of the above stated cause."
Laurel Print. & Pub. Co. v. Franklin Photo Engraving House, 6 Boyce, 185 , 189, 97 Atl. 601 , was cited in support of the application.
p. 521
Objection was made for defendant on the ground that the provisions of the Constitution for taking testimony on commission apply to certain witnesses only, and not to parties in a suit.
After reciting the facts as contained in the affidavit that the plaintiff is of the age of 81 years, and is suffering from paralysis in his right arm, and unable to leave his room, and that by reason of his said age and bodily infirmity, he may be unable to attend at the trial of the cause, the court made the following order:
“It is hereby ordered that Harry R. Brown be appointed commissioner take the testimony of Charles W. Jefferson, on his own behalf, in the above-stated cause, without written interrogatories filed, upon oral examination, and subject to cross-examination and re-examination by the parties or their attomeys, and that notice of seven days of the time and place for the examination of the said Charles W. Jefferson shall be given to the attorneys of the defendants, and that the said commission shall be returned into this court on or before January 29, A. D. 1920.”
[Signed] Conrad, J.
Heisel, J.