Missouri, Kansas & Texas Railway Company v. Ferris

This was an action commenced in the District Court of Bastrop County, Texas, on January 31, 1899, by the defendants in error, as plaintiffs, to recover damages sustained by the death of their father, charged to have been occasioned through the negligence of the railway company. Judgment having been rendered in favor of the plaintiffs, it was taken on appeal to the court of civil appeals for the third supreme judicial district of the state of Texas, and by that court affirmed. An application to the supreme court of the state for a writ of error having been denied, this writ of error was sued out.

The case presents these facts: An act of the legislature of the state of Texas, passed February 15, 1858, appearing in chapter 3, title 40, Revised Statutes of 1895, in the following sections reads:

'Article 2293. Either party to a suit may examine the opposing party as a witness, upon interrogatories filed in the cause, and shall have the same process to obtain his testimony as in the case of any other witness, and his examination shall be conducted, and his testimony received, in the same manner, and according to the same rules, which apply in the case of any other witness, subject to the provisions of the succeeding articles of this chapter.

'Article 2294. It shall not be necessary to give notice of the filing of the interrogatories, or to serve a copy thereof on the adverse party, before a commission shall issue to take the answers thereto; nor shall it be any objection to the interrogatories that they are leading in their character.

'Article 2295. A commission to take the answers of the party to the interrogatories filed shall be issued by the clerk or justice, and be executed and returned by any authorized officer as in other cases.'

'Article 2297. If the party interrogated rufuses to answer the officer executing the commission shall certify such refusal, and any interrogatory which the party refuses to answer, or which he answers evasively, shall be taken as confessed.'

On April 22, 1897, this amendment was made:

'Where either party to any suit is a corporation, neither party thereto shall be permitted to take ex parte depositions.' Tex. Gen. Laws 1897, p. 117.

Prior to the trial an effort was made to take the testimony of two of the plaintiffs, Sam Ferris and Frank Ferris, the one fourteen years of age and the other twelve years of age. Interrogatories were prepared by the defendant, and the clerk of the court was designated as the officer to take the depositions. On the trial he testified in substance that he went to the place where the boys were living with their uncle; that the uncle refused to permit them to be questioned, though neither of the boys was asked any question or declined to answer any interrogatory. He further testifies that the uncle 'told me that he had seen no attorney;. . . that he would bring the boys to town that afternoon to see their attorneys, and then if there was no objection Judge Garwood (counsel for defendant) could ask them what he wanted to.'

The trial court overruled the motion of defendant to take the interrogatories confessed as against the two plaintiffs.

Mr. H. M. Garwood for plaintiff in error.

Mr. John W. Parker for defendants in error.

Mr. Justice Brewer delivered the opinion of the court: