Saunders v. Conklin & Halsey , 122 Ala. 660 ( 1898 )

Opinion by

McClellan, C. J.

This was an action brought by the appellees against the appellant to recover for goods, wares and merchandise alleged to have been sold by the plaintiffs to the defendant. There was a judgment for the plaintiffs and the defendant appeals.

On the trial of the case the defendant moved to suppress the deposition of one Conklin, on the ground that when the deposition ivas received by the clerk of the circuit court, the envelope in which it was inclosed was entirely open at one end. This motion was overruled, and the defendant duly excepted. On this appeal, it is held, that said ruling of the court was not erroneous, it being stated that while the law requires a commissioner taking a deposition to seal up the deposition, &c., there is a prima fació presumption that he performs this duty, and this presumption is not rebutted by the fact that when the deposition reached the clerk of the court through the mails, the envelope is opened at the ends, as if it had been torn in transit. It is further stated that while the law contemplates that the deposition should be sealed when it reaches the clerk and so remain until opened by the order of the court, the accidental wearing out or breaking of the envelope while in the mails is no ground for suppressing the deposition.

The judgment of the circuit court is affirmed.