Briggs v. Briggs

Hayne, C. This suit was brought by one Frank T. Briggs and Mary E. Briggs, his wife, against his brothers, John G. and Albert L. Briggs, and one Mary J.' Briggs (which last made no defense), for the purpose of setting" aside a deed made by the plaintiff Frank to his father, Joseph W. Briggs. Judgment was given in favor of the defendants John and Albert, and the plaintiffs appeal. The sole point made for the appellants is, that the trial court erred in admitting in evidence the deposition of the father, Joseph W. Briggs. This deposition was taken in a suit brought by the father against the'plaintiffs here. During the pendency of the father’s suit, he made a deed of gift of the property to the defendants John and Albert, and subsequently died. Thereupon the plaintiffs com[254]menced the present suit as aforesaid. It-is stipulated that the subject-matter of the father’s suit “ was-identica'l'with that of the suit at bar,” and that “the issues ini both cases were in all respects the same,’.’ with certain unimportant exceptions. It is further stipulated that the plaintiffs herein were “ regularly notified of the taking of said deposition of said Joseph W. Briggs; that said-Frank T. Briggs and Mary E. Briggs appeared by their counsel, W. C. Burnett, at' the taking of said deposition and were granted, and so exercised", the privilege of cross-examining said Joseph W. Briggs”; and that “said deposition was in all respects proper, and the same was taken upon full compliance with all provisions of law.”

• The provisions of the Code of Civil Procedure in relation to the matter are as follows:-—

Section 1870, subdivision 8, provides that-evidence1 is admissible of “the testimony of a witness deceased,-or out of the jurisdiction, or unable to testify, given in a former action between the same parties, relating-to the same subject-matter.”

“Sec. 2034. When a d¿position has been once"taken, it may he read by either party in any stage of the same action or proceeding, or in any other action between the same parties upon the' same subject, and is then deemed the evidence of the party reading it.”

And in the chapter in' relation to public writings,-and1in connection with provisions with respect -to" the conclusiveness of judgments, the same code defines the word “parties’■’as follows: “The-parties "are deemed tó be the same when those between- whom the evidence is offered were on opposite sides in the1 former case, and a judg-’ rnent or -other determination could in that case have been' made between, them alone, though other parties were1 joined with both or either/’ (Code Civ. Pfitic.; sec: 1910.)