Adams v. Raigner

’ • Depositions. Where one of the parties to a suit was a party to a former suit, while the other claims title to the matter in controversy through the other party to the former suit, a deposition taken in the former suit upon sufficient notice, is admissible in evidence without being filed in the latter, and without other notice being given of its intended use, provided no surprise is worked.

Appeal from Johnson Circuit Court. — Hon. E. P. Wright, Judge. This was an action of ejectment brought by Thomas Adams against John H. Raigner. At the trial, Raigner, to sustain the issues on his pai’t, offered in evidence the deposition of W. P. Mayes, and the court permitted him to read it against the objection of plaintiff, This deposition was taken before the institution of the present suit, in an action of ejectment wherein Erancis M. Morgan was plaintiff' and the present plaintiff and one Shockley Adams were defendants, and the matter in controversy was th.e right to the possession of the tract in question in this ease. The deposition was taken on sufficient notice, and after it was filed in the former suit an ineffectual motion was made to have it suppressed. Morgan recovered in that case, and subsequently conveyed to Crandall & Sinnett, and they to defendant, Raigner. Mayes was dead at the time of the trial of this cause. cited Starkie on Ev., (9 Am. Ed.)* 412; Tindall v. Johnson, 4 Mo. 113 ; Samuel v. Withers, 16 Mo. 532. cited Parsons v. Parsons, 45 Mo. 265 ; Jaccard v. Anderson, 37 Mo. 91; Cabanne v. Walker, 31 Mo. 274; Norcross v. Hudson, 32 Mo. 227; 1 Greenl. Ev., (11 Ed.)'563, 554; 3 lb., 341, 342; Stephens’ Ev., p. 48 ; Critt v. Watson, 18 Mo. 274.