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Wabash R. Co. v. Miller.

case.

the patents; citing a number of authorities. It is expressly alleged in the second paragraph of the complaint that the patents had not expired. Therefore it is not necessary to determine the question of the correctness of the law as stated by the appellant, or whether the same is applicable to this

The second paragraph is not open to the objection urged against it. But, even if this objection was well founded, the paragraph states a good cause of action for unfair competition in business.

The other questions in the case, which are presented by the motion for a new trial, depend for their determination upon the evidence. What purports to be the original bill of exceptions has been certified to the court as a part of the record. Appellant, by its attorneys, filed a precipe as provided in $661 Burns 1901, 8649 R. S. 1881, and Horner 1901, and thereby directed the clerk of the court below “to prepare and certify a full, true, and complete transcript of the proceedings, papers on file, and judgment (except interrogatories filed with reply on March 30, 1899, for defendant to answer, and answers to said interrogatories by R. G. Marcy, filed April 5, 1899) in the above entitled cause, to be used on appeal to the Supreme Court.” In Chestnut v. Southern Indiana R. Co., 157 Ind. 509, it was held upon substantially the same facts as above stated that the original bill of exceptions was not in the record, and could not be considered. The original bill of exceptions not being in the record, there is nothing to support the causes assigned for a new trial.

Judgment affirmed.

158 170

174 510

THE WABASH RAILROAD COMPANY v. MILLER. [No. 19,195. Filed November 26, 1901. Rehearing denied March

13, 1902.] EVIDENCE.— Testimony of Witness at Former Trial. Stenographer.

Where a witness at a former trial remains competent and qualified, a resident of an adjoining county, temporarily absent from the State, and no diligence has been shown to procure his depo

Wabash R. Co. v. Miller.

sition or secure his personal attendance, it is not proper to permit a stenographer to testify in the trial of the cause as to what the

absent witness swore to at the former trial. pp. 175-184. RAILROADS. -Fires.-Evidence.-In an action against a railroad com

pany for damages sustained from fire escaping from its right of way, evidence was properly admitted concerning the condition of the right of way with respect to combustible materials upon it in the locality, but at other like places, and also concerning fires occurring on the right of way in the locality, but at other times and places, recently before and after that sued for. p. 184. From Adams Circuit Court; D. D. Heller, Judge.

Action by Sebastian Miller against the Wabash Railroad Company for damages from fire escaping from defendant's right of way. From a judgment for plaintiff, defendant appeals. Reversed.

W. V. Stuart, E. P. Hammond, D. W. Simms, A. Zollars, C. H. Worden and F. E. Zollars, for appellant.

Henry Colerick, for appellee.

HADLEY, J.-This cause comes to us from the Appellate Court under the provision of $1362 Burns 1894, with a recommendation that we "modify and give a broader application” to the rule of evidence which seems to be declared in Hobson v. Doe, 2 Blackf. 308, and apparently approved in Rooker v. Parsley, 72 Ind. 497, and Woollen v. Whitacre, 91 Ind. 502. See, Wabash R. Co. v. Miller, 27 Ind. . App. 180.

This is a second appeal. The suit was commenced in Allen county. The opinion of the Appellate Court reversing the judgment rendered at the first trial was certified to the superior court of Allen county on the 8th day of February, 1898. It was spread of record in said superior court March 12, 1898. On November 14, 1898, the venue was changed to the Adams Circuit Court. A transcript of the case was filed in the latter court November 29, 1898. On February 18, 1899, the case was set down for trial on the seventh Tuesday of the then running term, which fell on March 21, 1899, and the trial was entered upon on that day.

Wabash R. Co. v. Miller.

One Brackenridge testified as a witness upon the first trial, and his testimony' was taken in shorthand by the court's sworn stenographer. As introductory to the offer of the testimony of Brackenridge given upon the formal trial, as noted by the stenographer, Henry Colerick, one of appellee's attorneys, and a resident of Fort Wayne, testified as follows: "Charles S. Brackenridge was a witness at the former trial. The evidence of the former trial was taken in shorthand by the official reporter of that court, Miss Ritter. Mr. Brackenridge, for the last ten months or a year has been in the state of Texas, surveying a new railroad line in a sparsely settled portion of the state of Texas. After the setting of this case for trial, I made inquiry among the relatives and friends of Mr. Brackenridge for the purpose of reaching him by letter. He is a relative of my family. I was unable to obtain his post-office address, because of its varied character, and for that reason was unable to locate him." Upon cross-examination Mr. Colerick testified as follows: “Q. This case was set for trial on the 18th day of February, 1899, or the 1st day of March, 1899, wasn't it? A. I don't know exactly as to the first date, but I believe it was just as you say. Q. Prior to that you had made no inquiry? A. I had seen Mr. Brackenridge. I had talked with him some two or three months before that, as that is in answer to the question. I didn't know where he was. I knew he was in the state of Texas, but from the description of the work he was doing, and the character of the land he was going through,-almost unbroken state of the country through which they were surveying the road, I didn't know the location. Q. Where was he when you saw him? A. In the city of Fort Wayne. Q. This case at that time was pending, was it not ? A. This case was pending, but whether it was before the change of venue or after, I can't tell you. Q. It was either the Allen Superior Court or the Adams Circuit Court? A. Yes, sir.” Mr. Colerick continuing: “And I desire to state that the issues joined in this

Wabash R. Co. v. Miller.

case are the same identical issues that were joined at the time of the rendition of Mr. Brackenridge's evidence on the former trial; and I desire to add that the action then, when such evidence was rendered, was between the same identical parties that this case is between, and that it is the same identical case.”

Catherine Ritter then testified that she, as the official reporter of the superior court of Allen county, reported the evidence given at the former trial, and that Charles S. Brackenridge testified at that trial; that she made a shorthand report of his testimony, which report she had with her. She was then asked by appellee's attorney to “read the questions propounded to which answers were made, and the answers made thereto by Brackenridge as such witness on such former trial.” Over the objection of the defendant, on the grounds that it appeared that the witness was still living, and the proper diligence to procure his testimony had not been shown, the witness was permitted to read in evidence what purported to be the testimony of Brackenridge at the former trial. The action of the court in permitting the notes of the stenographer to be read to the jury as evidence is vigorously assailed.

It is argued by appellant that whatever may be said of the correctness and scope of the rule as stated in Hobson v. Doe, 2 Blackf. 308, and apparently followed in Rooker v. Parsley, 72 Ind. 497, and Woollen v. Whitacre, 91 Ind. 502, it cannot in any event be extended to meet the facts of this case. And so it may be said that the real question presented is not so much the soundness of the doctrine indicated by the Hobson case, as whether the most liberal view of the rule will bring these facts within its operation. We have before us a record showing that after the reversal of the former judgment by the Appellate Court the cause was pending for a retrial in Allen and Adams counties for more than three years before the last trial. The absent witness,

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Wabash R. Co. v. Miller.

Brackenridge, is still living, a competent witness, and a resident of the city of Fort Wayne, which is situate in a county adjoining Adams. Ten or twelve months next before the last trial Brackenridge had been in the state of Texas, surveying a railroad in a sparsely settled country; but two or three months before the case was set for trial he was back in Fort Wayne, and was seen and conversed with by appellee's attorney. After the case was, on February 18, 1899, set for trial, appellee's attorney inquired of Brackenridge's relatives and friends for his post-office address, for the purpose of reaching him with a letter, but was unable to locate him or learn his post-office address. Two days before the last trial appellee's attorney caused a subpoena for Brackenridge to issue, as a matter of form, and when he knew the witness was absent from the State.

From this it appears that Brackenridge was present in Fort Wayne at least two years after the return of the case from the Appellate Court before he went to Texas, and in the absent period, and but two or three months before the trial, he was back in Fort Wayne, conversing with appellee's attorney; and none of the following facts are shown: (a) That appellee did not timely know that Brackenridge was going to Texas, and was liable to be absent at the time of trial; (b) that, during the presence of the witness in Fort Wayne, shortly before the trial, appellee did not know that witness intended soon to return to Texas; (c) any reason why the witness' deposition was not taken; (d) how soon it was after the case was set for trial that appellee's attorney inquired of the witness' relatives and friends about his postoffice address; (e) whether the inquiry was made of those relatives and friends who were likely to know; (f) whether appellee or his attorney knew the employer of Brackenridge, or where such employer resided, or whether inquiry was made of him; (g) whether a letter was addressed to the witness' last known post-office address.

The admissibility of such evidence constitutes an excep

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