Winter v. Elmore
Supreme Court of Alabama
Appeal from the City Court of Montgomery. Heard before Hon. Thos. M. Arrington, at Chambers. The appellant in this case, Joseph S. Winter, applied to Y. M. Elmore, register in chancery at Montgomery, by petition under oath, for an order to take and perpetuate the testimony of I. Poliak and others, as adverse parties to an expected suit; and his application being refused, he applied by petition to Judge Arrington for a mandamus.
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Appeal from the City Court of Montgomery. Heard before Hon. Thos. M. Arrington, at Chambers. The appellant in this case, Joseph S. Winter, applied to Y. M. Elmore, register in chancery at Montgomery, by petition under oath, for an order to take and perpetuate the testimony of I. Poliak and others, as adverse parties to an expected suit; and his application being refused, he applied by petition to Judge Arrington for a mandamus. His petition was dismissed on the h earing, and this appeal is taken from the order dismissing it.
1Opinion of the CourtSomerville, J.
The statute provides proceedings for the perpetuation of the testimony of witnesses, which provisions are contained in sections 2823-2831 of the present Code (1886). It is declared in section 2823 that: “The testimony of a witness may be taken conditionally, and perpetuated as provided in this article.” It is made applicable alike to suits actually pending, and to those anticipated, both at law and in equity. — § 2824.
The inquiry raised is, whether the word “witness” is here to be construed to include a party.
The statute was intended, in our judgment, to apply only to witnesses who are not…
2Cited by13 opinions
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- McCollum v. Birmingham Post Co.Supreme Court of Alabama · 1953
- Ex Parte CrossSupreme Court of Alabama · 1945
- American Life Ins. Co. v. PowellSupreme Court of Alabama · 1953
- Ex Parte BrooksSupreme Court of Alabama · 1947
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