The opinion of the court was delivered by

It is contended that the court erred in permitting the deposition of J. W. Moyle to be read in evidence. When the deposition was offered, Eby, Dowden & Co. objected, “upon the ground that the witness is at present in the county of Edwards; that he has been in attendance at the court as a witness, and that he is at present, it is believed, on his way to this place [Kinsley].” The court overruled the objection, and an exception was taken. The deposition was then read, and two questions were objected to, one because it was leading, incompetent, and irrelevant, and the other solely upon the ground that it was leading. After the deposition had been read, an offer was made to prove that, at the time of the reading of the same, the witness Moyle was present in the court room. The plaintiff admitted his presence.

The trial court committed no error in permitting the deposition to be read. It was taken in Kiowa county, and shows *783that J. W. Moyle is a resident of that county. Of course, he could not be compelled to attend for examination on the trial in Edwards county. (Civil Code, § 328.) The deposition of a witness may be used in a civil action when he does not reside in a county where the trial is had. (Civil Code, § 346.) When the objection was made to the deposition, no affidavit was presented showing that the witness was in the county, or that his immediate attendance at the court could be procured. After the deposition had been read, the court’s attention was called to the presence of the witness in the court room; but it does not appear that the plaintiff below, or the trial court, had any knowledge of his presence until after the deposition had been read. After the reading of the deposition, Eby, Dowden & Co. produced Moyle as their own .witness, and thereby had the benefit of his presence and evidence before the jury. (Waite v. Teeters, 36 Kas. 604.) In the case of Fullenwider v. Ewing, 30 Kas. 15, the court’s attention was called to the presence of the witness, who had been subpoenaed, before the deposition was read.

The evidence of Moyle, that he sold to Eby, Dowden & Co. a lot, and received in payment an undivided one-half interest of the store building described in the bill of sale, tended to show that Eby, Dowden & Co. regarded the building as their own, and not one upon which they had a mortgage or lien merely. Moyle and wife, in payment of an undivided one-half interest in the store building described in the bill of sale, executed and delivered to Eby, Dowden & Co. a deed for an undivided one-half interest in a lot in Mullinville.. Objection was taken to the introduction of a certified copy thereof, because it had not been shown that the original was not in the possession or under the control of Moyle or Winters; but as Moyle had delivered the deed to Eby, Dowden & Co., defendants below, it is to be presumed they had the possession thereof, and, therefore, that the original was not in the hands or under the control of either Moyle or Winters.

It is finally urged that the trial court committed error in instructing the jury that, if Winters made an absolute sale of *784the mortgaged property to Eby, Dowden & Co., he was entitled to a verdict for $600, with interest. The principal controversy in the case was whether Winters sold his building, or gave the written instrument as a mortgage or security only. The jury evidently found that there was a sale. There was no conflicting evidence over the amount stated in the writing. Therefore the court committed no error in this or any other of its instructions.

The evidence is greatly conflicting, but, with the finding of the jury and the approval of the trial court, we cannot interfere. We have examined this case upon its merits, but it is doubtful whether it is entitled to such consideration. (Taylor v. Mason, 28 Kas. 381; Railway Co. v. Corser, 31 id. 705.)

The judgment of the district court will be affirmed.