This is an original action in this court upon complaint for Writ of Prohibition filed by William J. Wiglesworth in which he prays that an order issue to Hon. Coleman Wright, Judge of the Anderson Circuit Court, prohibiting him from entering an order refusing to grant complainant's motion that Betty Gilbert Wiglesworth be compelled to give her deposition as if under cross-examination in a divorce action pending between them.
In the divorce suit defendant, William Wiglesworth, filed motion to require the plaintiff, Betty Wiglesworth, to give her deposition as if under cross-examination, she having previously refused, on advice of her counsel, to answer questions propounded to her on a previous notice to take, which refusal was certified to the court. After a hearing on the motion, the court instructed counsel to prepare and submit an order overruling said motion, which was done. The court withheld entering the order until this court was given an opportunity to pass on the question involved.
In support of his complaint, appellant argues that he is entitled to take the deposition as if under cross-examination because: (a) by subsection (8) of section 606 of the Civil Code of Practice, now section 421.210 of the Kentucky Revised Statutes, any party to an action has an absolute right to take the deposition of the adverse party; and (b) Rule 26.01 of the Rules of Civil Procedure provides that any party may take the deposition of any person, including the party, by oral examination or written interrogatories for the purpose of discovery or for use as evidence in the action or for both purposes.
In support of his first thesis, appellant cites the Kentucky cases of Western Union Telegraph Co. v. Williams, 129 Ky. 515, 112 S.W. 651, 19 L.R.A.,N.S., 409; Owensboro City Railway Co. v. Rowland, 152 Ky. 175, 153 S.W. 206; Sackstaeder v. Kast, 105 S.W. 435, 31 Ky.Law Rep. 1304; Johnson v. Langley, 247 Ky. 387, 57 S.W.2d 21; Louisville & Nashville Railroad Co. v. Miller, 44 S.W. 119, 19 Ky.Law Rep. 1665; Gowdy v. Gowdy, 230 Ky. 545, 20 S.W.2d 170; and urges with such earnestness that these cases support his proposition, we believe passing comment about them is required. We have concluded that no one of them is sufficient authority to support his position.
In the Western Union Telegraph Co. case the party asked for continuance because the adverse party had refused to subject himself to cross-examination under subsection (8) of section 606 of the Code, and it was insisted that if the adverse party, whose deposition the other party had sought to take, actually appeared at the trial and testified and subjected himself to cross-examination, the party who had sought to take his deposition could not properly complain. The court held, however, that the Code does not place any restriction upon the right of one party to take the deposition of the adverse party and that it gave the absolute right of one party to take the deposition of his opponent.
In the Owensboro City Railway Co. case, it was determined that in order for a party to be examined under section 606, the witness need not be one of those whose deposition may be read in an action as provided by the Civil Code of Practice, section 554.
The Sackstaeder case is authority only for the rule that by taking the deposition of an adverse party as if under cross-examination, one thereby does not make the deponent his witness.
In the Johnson case, it was held that depositions of parties taken pursuant to this section might be read in evidence at the trial even though the party who gave it was present and that section 554, which concerns depositions taken de bene esse, is not applicable to the depositions of parties taken under section 606. It is interesting to note in this case that the court made this observation: "There is no restriction in the Code on the use of this deposition on the trial if he is a competent witness, though he may be present.' [247 Ky. 387, 57 S.W.2d 24.]
Section 606 is not discussed in the Louisville & Nashville Railroad case and it is authority only for the statement that testimony as to admissions made by a party as a witness on a former trial is substantive and competent testimony.
No one of the foregoing cases supports the proposition that the right to take testimony as if under cross-examination gives the right to take incompetent testimony or to force responses to questions concerning matters which are privileged under the law.
The Gowdy case is quite different from the foregoing because there a divorce action was involved. The grounds for divorce were cruel treatment. It was decided in the year 1929 when either party had the right to testify where such grounds were involved. Over the objection of the husband, the wife took his deposition. The court held that she had the right to take this deposition. If section 606 had not been amended since the date of that decision, it would have constituted a firm basis for appellant's position in this case. However, as pointed out in the response, changes in the statute render this case inoperative.
Prior to 1940, subsection (1) of section 606 provided that "Neither a husband nor his wife shall testify while the marriage exists or afterwards concerning any communication between them during marriage. Nor shall either of them testify against the other.' Certain exceptions were provided; for instance, in cases involving cruel and inhuman treatment, the parties were permitted to testify. Under the statute, as then written, in all cases not covered by the exceptions, the testimony of the husband or wife was not permitted either for or against each other for any reason.
In the Gowdy case, it was held:
"The appellee called the appellant as a witness, and took his deposition as if under cross-examination. His exceptions to this deposition were overruled. He complains of this one the ground that the taking of his deposition, in this manner, was for the purpose of getting into the record incompetent evidence with which to obtain an undue advantage of him and to prejudice his rights. Under section 606 of the Civil Code, appellee had the right to take his deposition as if under ...