BLAKESLEE v. DYE.

27 P. 881

1 Colo.App. 118

BLAKESLEE
v.
DYE.

Court of Appeals of Colorado

October 12, 1891

Error
to Otero county court; C.W. BOMGARDNER, Judge.

James
H. Dye sued Wilmot Blakeslee for commissions for selling
defendant's property. Judgment for plaintiff. Defendant
appeals. Reversed.

James
Hoffmire, for plaintiff in error.

A.F.
Thompson, for defendant in error.
[27 P. 882.]

BISSELL,
J.

Dye
brought this action against Blakeslee before a justice in
Otero county to recover $125, which he claimed as a
commission upon the sale of certain property belonging to
Blakeslee. After a trial before the justice an appeal was
taken to the county court, where the action was tried by a
jury, which found a verdict of $50 in favor of the plaintiff,
on which the judgment was entered whereon error is assigned.
During the progress of the litigation in the county court the
plaintiff, Dye, sued out a dedimus to take testimony of [1
Colo.App. 119] one Desent in Fayette county, Iowa. Divers
errors are insisted upon and argued by counsel in their
briefs, but the only one important to consider is that
predicated upon the form of the dedimus under which the
testimony was taken. The writ appears in the record, and was
apparently issued by the judge of the county court acting as
his own clerk. It is without a seal or any other form of
authentication. A motion was made prior to the trial to
suppress the deposition because of this irregularity. The
error is well assigned. The statute requires (Code 1887, §
349) that the deposition of a witness residing out of the
state must be taken upon a commission to be issued by the
clerk under the seal of the court. This statute is but
declaratory of the law as it existed prior to this enactment.
The seal of the court was always a necessary and essential
part of every writ issued at the common law. In no other
manner did a court of record authenticate its process. It is
clear under the authorities that a dedimus is a writ, and
that it is a process requiring a seal. Freeman v. Lewis, 5
Ired. 91; Ford v. Williams, 24 N.Y. 359; Tracy v. Snydam, 30
Barb. 110; Churchill v. Carter, 15 Hun. 385; Byington v.
Moore, 62 Iowa 470, 17 N.W. 644. The statutory provision is
in harmony with the general law upon the subject. It must,
therefore, be true that the specific requirement of the
statute upon the subject must be observed in order to render
the process available as an authority to an officer to take
the testimony, and that without it the writ would be a
nullity, and a deposition taken under it would be
inadmissible as evidence. The motion to suppress the
deposition should have been sustained, and for the error of
the court in this particular the cause must be reversed and
remanded.