Parker v. Hayes

The notice of taking the depositions, which was in proper form, and duly served, was to take the depositions at Eockford, April 27th, 1871. The complainant appeared by an *187agent and counsel. The commissioner, for his own convenience, adjourned the taking testimony to May 2d, at which time the complainant appeared as before, when the commissioner again adjourned proceedings until May 19th, for the same reason. At neither of these meetings was any witness examined; nor did the complainant consent to the adjournment. After the last adjournment, the agent of the complainant, who was from New Jersey, returned home, and did not, nor did complainant's counsel, again attend' before the commissioner. One witness was examined on the 19th, one on the 20th, one on the 22cl, and one on the 23d of May, and one on the 20th of June.

The statute requires notice of the time and place of taking these depositions to he served on the opposite party. For Rockford, the time of service would be about twenty days. Yo such notice was given of the time and place of the actual taking of these depositions, and the question presented is, whether adjournment of the matter by the commissioner supplies the place of such notice. The statute provides for no such adjournment, and the power of keeping a party or his counsel one thousand miles from home for fifty days, to attend adjournment of a commissioner at his pleasure, under the penalty of abandoning his case to strangers, is too oppressive to be upheld without clear authority. There is no express authority in the act, and I find no principle of law, or any practice in analogous cases, to sustain it. The commissioner is not a court or judicial officer, and has given to him no discretionary power. And even the' courts of law in this state could only adjourn from day to clay, until power was given by statute to adjourn over. I know no reason why a greater power should be given to this commissioner by the mere fact of his appointment. This statute creates a new power, contrary to the settled practice, and should, therefore, be strictly construed and strictly complied with. In case of commissions, strict compliance has always been required.

The examiners of this court have, in this state, power to adjourn conferred on them by the rules, subject to the limita*188tions there fixed. Before the regulation by the rules, it was customary for examiners to adjourn, but generally by consent of parties, and no case in which it was done without such consent Avas ever brought before the court to test the power.

I think, both upon principle and as a matter of expediency, it must be held that such commissioner has no poAver to adjourn, but only to continue the examination when once commenced, from day to day, Avhile actually proceeding with the examination of witnesses.

I am of opinion that the depositions must be suppressed.