Scott v. McDaniel

Warner, Chief Justice.

This case comes before this court on a bill of exceptions to the judgment of the court below in overruling the defendant’s motion to dismiss the plaintiff’s certiora/i'i on the grounds therein stated, and in sustaining the same on the ground set forth in the judgment of the court as contained in the record.

1, 2. There was no error in overruling the defendant’s motion to dismiss the certiorari.

3. It appears from the record and bill of exceptions, that on the trial of the case in the county court, a set of interrogatories for a witness by the name of Scott was offered to be read in evidence by the plaintiff (which interrogatories had been taken out by the defendant) when the defendant objected to the reading of the same on the ground that the answers were not written by either of the commissioners nor by the witness with their consent. The county court overruled the objection, and the defendant sued out a cer tiorari, and on the hearing thereof in the superior court the court sustained the certiorari upon that ground and ordered a new trial, the court deciding the question as appears in its judgment “ by inspection of the answers.” The answers of the witness appear to have been taken before the commissioners, signed by the witness, and attested by them in due form as required by law. Witnesses may write out their own answers in the presence of the commission *782 ers and by their consent, but in no other way shall they (the witnesses) prepare the same. Code, §3887. The commissioners were the officers of the court for the purpose of having the interrogatories properly executed, and the legal presumption is that they performed their duty in that respect, especially in this case when they were selected by the party who now objects to their action as to the manner in which the interrogatories were executed, and the important practical question is, whether that legal presumption can be rebutted by the mere inspection of the answers of the witness, his signature thereto, and the signature of the commissioners, without any other evidence. The court below held that the county court erred in allowing the answers to be read, because from its inspection of the answers .the same were not written either by the commissioners, nor by the witness. We are not aware of any law which prohibits the commissioners from employing a disinterested person as a clerk to write the answers of a witness examined before them, and to authorize justice courts, county courts, or any other court, to assume, by mere inspection, without other evidence, that the commissioners had violated their duty and the provisions of the 3883d and 3884th sections of the Code, would be in our judgment to establish a dangerous practice ; therefore the sustaining of the certiorari on the ground as set forth in the record was error. This not being a motion for new trial, our judgment is confined to the errors alleged in the bill of exceptions.

Let the judgment of the court below be reversed.