The opinion of the court was delivered by

The only' question before this court on the exceptions is, whether the county court erred in excluding the deposition of Charlotte L. Emerson, offered by the plaintiff. The objection made to it was that there was no date to the certificate of the oath show*164ing the time when the deponent was sworn to the truth of the deposition. The court sustained the objection, notwithstanding the plaintiff offered to show that the defendant was notified to be present at the taking of the deposition, and when it was sworn to by the deponent. It is insisted' on the part of the defense that the ease shows that the plaintiff could not have been prejudiced by the exclusion of the deposition, and that the judgment should not be reversed even if the decision of the court excluding it was erroneous. This proposition is correct, provided it clearly and properly appears that the deposition, if admitted, could have had no tendency to change the verdict. The action was trespass for a quantity of boards. The exceptions show that the verdict of the jury for the defendant was special; that the jury so found for the reason that they did not find the boards were the property of the plaintiff; and that therefore they did not consider the other question, that is, whether the defendant took the boards. The exceptions' state that “ the deposition became .wholly immaterial by reason of the jury not finding that the plaintiff owned the boards.” But the plaintiff insists that as the deposition was excluded solely for a defect in the caption, the county court cannot be supposed to have known the contents of the deposition, and therefore that this statement as to the materiality of the deposition is not legitimately a part of the case,, and ought not to be regarded. It is true that, as the court was called on simply to pass upon the sufficiency of the caption, they had no occasion to look into the body of the deposition at the trial, and it is not material that they should have done so. But when the deposition was offered, the counsel for the defense had a right to look, not only at the caption, but at the contents of the deposition, in order to determine whether-there was any legal ground for excluding the deposition, and whether it would be for their, interest to exclude it. So that it is fair to presume that the defendant’s counsel had knowledge, at the trial, of the contents; and if desired by the defendant’s counsel, the judge in making up the exceptions would have a right, and it would be his duty, to look into the deposition, and if it appeared to have no bearing on the point on which the jury found their verdict, and had no tendency'to change the *165result, to so state in the exceptions. If the plaintiff still claimed that it had a legal tendency to change the result of the case, he could in this court test the correctness of this statement of the judge by making the deposition a part of the case, and having such other evidence in the case stated as would be necessary to show whether the deposition became wholly immaterial or not, by the finding of the jury. We see no impropriety, therefore, in the judge making the statement, in the exceptions, that the deposition became immaterial by the finding of the jury. But without this statement the same thing appears in another form. The deposition and the judge’s minutes of the evidence as to the plaintiff’s title are referred to as part of the case, from which it appears affirmatively that the deposition had no bearing whatever upon the question of the plaintiffs title, but referred exclusively to the question of the taking by the defendant relied on by the plaintiff as the trespass. As it is clear- beyond dispute that the exclusion of the deposition could not have prejudiced the plaintiff, it is immaterial whether the court erred in excluding it or not, and upon that question the court express no opinion. No other question being-reserved by the exceptions, we can entertain no other.

The judgment of the county court is affirmed.