Brand v. Butler

Although considerable testimony was introduced upon the trial of this action, yet it is clear that the testimony which was received is insufficient to prove that the computation, upon the faith of which the testator discharged and surrendered the mortgage in question, was erroneous. This was frankly conceded by the learned counsel for the appellant, on the argument of the cause in this court. Hence the judgment of the circuit court should not be disturbed, unless the deposition of *683tbe testator (wbicb tends to sbow tbat sucb computation was erroneous) was improperly rejected.

Several specific objections were taken to tbe deposition, one of wbicb was, tbat tbe statutes of tbis state did not, when tbe same was taken, authorize tbe taking of tbe deposition of a party on bis own bebalf merely because sucb party was about to leave tbe state not to return thereto in time for tbe trial of tbe action. We think tbat tbis objection must prevail. When tbe deposition was taken, tbe only authority for taking tbe deposition of a party on bis own bebalf, was given by R. S., 1858, ch., 137, Sec. 53, wbicb provided as follows: “ Any party to an action or proceeding who resides out of. tbis state or more than thirty miles from tbe place of trial, may have bis deposition taken to be used on sucb trial, and in tbe same manner and subject to tbe same rules, as is provided by law for taking tbe depositions of other witnesses.” Tay. Stats., 1601, § 78. Tbe enactment of tbis section shows tbat tbe legislature, when it allowed parties to actions to become witnesses in their own be-balf, did not intend thereby to place them on tbe same footing with witnesses not parties, in respect to tbe right to testify by deposition, but only to allow sucb parties to give their depositions in tbe two cases specified in tbe section. Hence a party to an action who resided in tbis state and within thirty miles of the place of trial, could only be a witness in bis own bebalf by appearing and testifying on tbe trial. In 1867, and long after this deposition was taken, tbe law was changed, and parties were placed upon tbe same footing as other witnesses as regards tbe taking or giving of their depositions. Tay. Stats., 1602, § 79. Tbis statute does not, however, affect depositions taken before tbe enactment thereof.

Tbe deposition having been taken without authority of law, and tbe defendant having entirely disregarded tbe notice of tbe taking thereof, as be lawfully might, and having abstained from cross-examining tbe deponent, tbe deposition cannot be saved under tbe provisions of tbe law of 1864, ch. 267, sec. 4, *684for tbe reason tbat it cannot be correctly said tbat tbe taking of this deposition was only an unimportant deviation from tbe directions of tbe law in tbat behalf. Neither can we say tbat tbe defendant would not be substantially prejudiced by the admission of tbe deposition in evidence. Tbe law above mentioned was evidently intended to cure mere formal defects in certain cases, in tbe taking of depositions, and not to render depositions taken without authority of law admissible as evidence. Tbe provision is as follows: “ An unimportant deviation from any direction or law relative to taking depositions, shall not cause any deposition to be excluded where no substantial prejudice would be done to tbe opposite party.”

These views render it quite unnecessary, to notice tbe other objections to tbe deposition of tbe testator.

By the Court. — Tbe judgment of tbe circuit court is affirmed.