Burnsworth v. Burnsworth

On May 1, 1946, we entered an order in this cause revoking the appointment of the master and setting aside his report and all proceedings before him because of lack of service on minor respondent, and at the same time granted leave to libellant to proceed upon the libel de novo. Thereafter, process was issued and served in compliance with The Divorce Law of May 2, 1929, P. L. 1237, Pa. R. C. P. 2026-2050, the master reappointed, and due notice given by him that a meeting for the purpose of taking testimony would be held at his office on November 19, 1946, at 10 o’clock a.m. At the time and place so appointed the master was attended by libellant, the latter’s counsel, and respondent’s guardian ad litem. *270Counsel for libellant then moved “that sworn testimony of the witnesses at the previous hearing on March 21, 1946, be admitted into the evidence and made a part thereof”, which motion the master granted, after which libellant was sworn and testified as follows:

“Q. Mr. Burnsworth, have you had an opportunity to read over all the testimony as given by you at the previous hearing?

“A. Yes.

“Q. Will you state whether or not that testimony as given by you is true and correct?

“A. Yes, it is.

“Q. Will you state whether or not you would have given the same answers to the same questions today?

“A. Yes.”

That was the extent of the proof, and on December 5, 1946, the master filed his report, attaching thereto a transcript of the testimony taken at the hearing held on March 21, 1946, and recommending that a divorce be granted.

There is no authority whatever for the extraordinary procedure before the master of “swearing by reference”. A witness must narrate to the tribunal viva voce the facts as he knows them at the time; any other mode of examination would lead to infinite mischief: Bovard et ux. v. Wallace et al., 4 S. & R. 499; 3 Wigmore on Evidence § 787. We shall therefore return the record to the files.

Order

And now, December 28, 1946, upon consideration of the foregoing case, the findings of fact, conclusions of law, and recommendation of the master are disapproved and overruled, and it is ordered that his report and all accompanying papers be returned to the file.