Daily capital journal. (Salem, Oregon) 1903-1919, 1911-07-20

DAILY CAPITAL 70
the family Of James Morrison at
Brookfeld, Ohio, when he came to the
Pacific Coast; that about 1866 he set
tied in the Grande Ronde Valley, I'm
ion county, and died, without having
been married, in Portland, Oregon
January 81, 1905.
Il IS asserted on the par. OF plain
tin that decedent was the illegitlmate
son Of James Morrison and one Cath
crime France; that Catherine France
afterwards married one James Lock
hart and settled in New Zealand
where she died in 1879, while defen-
dants contend that decedent was the
son OF James Morrison and jeanette
Marshall. who after his birth inter
married. about the year 1887, there
by, by virtue OF Secs. 1851, 1852, L.
o. L., legitimatizing such issue; that
defendants, William Morrison, Law
renee Morrison and Euphemia Krohn
are the brothers and sister Of the
whole blood to the intestate, and that
therefore they, and T. NJ. Rankin, r.
/ NJ. Rankin, Earl Rankin, George Ran
/ kin, Minnie Goodman and Cora Joel,
/ the children of jeanette Rankin (nee
MorrlsonJ, deceased, an alleged sis
ter of the whole blood of said intes-
tate, are his lawful heirs.
At the trial Of the cause objection
to the reading of the deposition of
Mrs. Margaret Shaw was made by
counsel for the defense, for the rea-
son that the infrmity Of the witness,
prevailing on May 19, 1908, when the
deposition was taken, had not been
shown to continue to the time of the
trial Sec. 851, i. o. L. provides that
when a deposition is taken under
subdivision 4 of Sec 837, before the
same can be used proof shall be made
that the witness still con-
tinues infrm." Carter v.
Wakeman, 40 Or, 427. The testimony
Of Mrs. Shaw's attending physician,
as well as that Of another competent
physician, taken at the time of the
last trial OF the cause, clearly shows
that she had been receiving medical
attention for about six weeks, and
that both physicians saw Mrs. Shaw
the morning prior to the commence
ment of the trial; that she was be-
tween 10 and 70 years of age, very
nervous and easily excited; that she
was unable to walk up the stairs, and
1t was believed probable that if sub
jeCted to an examination on the wit
gtaYNH hn vtfnt11I
lapse and suffer therefrom. There is
also evidence tending to show that al
and prior to the time of the first triaI
Of the case she was infrm and suf.
fering from acute disorders. As held
. by this court upon a former hearine
OF the cause this is a matter which
necessarily would be left to the ,sounC
discretion Of the trial court. Objec.
tion was also made that Grace Ian.
doris, the commissioner before whom
this deposition was taken, had served
for a long time as a stenographer In
the Office of one of the attorneys fol-
plaintiff. The motion does not state
when she served as such stenograph-
er, and the affidavit in support there
of is silent upon this question. and
1t Is not shown that the commission.
er was incompetent to act as such
Moreover, while counsel for the de.
fense made objection to, the taking Of
this deposition, no objection on this
ground was made at the time mol
subsequently, until seven months IF
terward. We find no error in the adj
: mission of the deposition.
J, A motion, supported by affidavit
o was filed to suppress, and objection
O was made to the reading of the depo
" sition of John Richie From a care
At full examination of the affidavit in sup
J. port Of the motion, many of the de
$ tails of which are contradicted b.
IL counter-afiidavits, and looking solel,
e, to the substance thereof, it appears
ii that the objection was made ,upoI
Ii the ground that Thomas Arnot, Esq
one of His Majesty's justices of tn
7 peace for the county of Clackaman
nan, Scotland, before whom the de
| position was taken, had at the in
stance of John Reid solicitor, pre-
| vlously taken the affidavit of Johl
| Richie, which appears on file herein
and Is of similar purpOrt to that 0
| this deposition. 1t does not appea
that the commissioner ever acted 4
! the capacity of attorney for any O
ie the interested parties, and we do nr
think that this fact tends in any man
ner to disqualify such commissioner
and from all the other matter con
u tanned in the affidavit We think ther
no Is nothing tending to show that th
I magistrate in any way was incompC
tent to act as such commissions
- The deposition appears to have bee
taken in painstaking, careful mar
. ner, and certified to as required b
} Sec. S42, l.. o. l.. The certihcat
shows that 1t was typewriter by
: disinterested person under the dire,
ton Of the commissioner and ther,
after read and signed by the witnes
The fact that John Reid, solicito
= was present would not of itself il
N dicate any irregularity. Counsel L
a defendants submitted cross-interroi
atories, which were fully answered.
AT the conclusion Of plaintiffs ey
dence, counsel for defendants move
the court for a non-suit, mainly {,
the reason that plaintiff had fail,
TO show by any competent eviden,
that John Morrison was an illeglt
mate child, This motion, to a lar,
extent, was based upon the auestlc
OF the admissibility Of the depositioI
OF John Richie and Margaret Sha,
4 ana the ruling thereon practical
n determined tha motion e.. -. -