Wichita eagle. [volume] (Wichita, Kan.) 1886-1890, 1889-01-03
GAY VS.. BARTHOLOMEW.

! To the Editor of the EAGLE.
/ The only excuse for this Communica-
! ton is desire that the public may have
correct statement of what was done i'll
( the above case. Being one OF the attor-
news in the case | feel as if | can state
! correctly the actual decision of Judge
/ Reed.
| The discussion of the question in your
/ columns has not brought out the real
and exact decision made by Judge Reed
| In short, the Judge decided thus: That
! the deposition of a defendant party in d
case, although resident of the county
where the suit was pending, might be
taken if the same was TO be used on
motion TO strike the answer of the de
! PENDANT from the files because the same
was sham He did not rule that the
deposition could be taken TO determine
if the answer was true OF false. but only
to that II was false to the extent that it
has sham answer. In other words. the
Judge held that a defendant could be
examined by way of deposition, on q
motion properly made in case pending,
and that if the defendant answered thar
his answer was sham answer and made
i'll bad faith, then on such confession
the answer could be stricken from the
files. This and nothing more.
What does this decision mean and say:
1t is declaration from a court
that the court is not to be- trified with;
not plaything for lawyers with i'm
pecunious and delinquent clients.
Let US take a case III the concrete: one
frequent and common i'll our courts to-
dav for illustration. and see if the above
decision is not as strongly grounded on
good common, hard sense as it Is by
law anu Judicial decisions, y owes Il.
on promiosOry note for ) 600
b flies IAN answer IN which he admits
the execution of the note, but SAYS he
paid it before the commencement of the
suit A has the note in his possession
unpaid and knows that the answer of +
Is lie. done for the purpose Of getting
time and delay: III other words Ii Is a
sham answer.
What must a do: He goes into court
and informs the court by way of mo-
ton that the court is being trided with,
and that b. the defendant. has filed AN
answer. which Is sham IN substance and
facts, and done in bad faith. VIII any
body claim shat a court, instituted 10
redress wrongs. can not in the admins
tration of justice shun imposiers before
the courts as the average citizen does III
every day life:
The motion being filed question is
presented to the court that it must
decide On the hearing of motion
every lawyer knows that all kinds Of
testimony may be used. This in
cludes oral testimony. afiidavitS.
dispositions and documentary evidence.
The motion IS called and the court pro-
ceeds to determine and decide it. The
plaintiff fling the motion in order u
present his side OF the motion. may
subpoena the defendant VINO fled tie
answer. and enforce his attendance BY
the compulsory powers Of the courts and
compel him 20 testify 10 the truth. the
whole truth. and nothing but the truth.
The right To Use the oral testimony of
= party - a witness on the hearing Of a
motion. necessarily gives the right to use
the testimony of the same witness on the
hearing Of the motion. by way 81 depo-
sition. The defendant giving his ies-
timony. either IN the presence q
the court or by WAY Of deposition. saws
on his solemn oath, that the answer
fled BIZ his attorney III the case Il not
true. X an answer IS not trlie, then i
IL rot false to the extent that It i sham
answer:
The defendant on ms oath confessing
that the matters and things stated in ms
answer are not true. sustaiEs the motion
anu the court must grant the prayer 81
the motion and strike the sham answer
from the files. In dong this the colGrt
does not render final Judgment or de-
iermine the ultimate rights 81 the parties
10 the case. The ccurt only say II Us
decision that courts viii not tolerate the
answer Of a party in the case when that
rsartv coufesss.s II j. 3 sham and an arti-
ice, designed Tor iile purpose Of 5eiay-
From time InmernoTiai courts have
had inherent power 10 protect sIssif and
the administration from assIs- ard Iser
version Is II not 81 abuse 81 thu Dig /
nitv ~ the court DeTversiou ~ the OF