Aicardi v. Strang, Murray & Co. , 38 Ala. 326 ( 1862 )

R. W. WALKER, J.

In the case o<f depositions taken upon interrogatories, the statute requires the party taking the same to give the adverse party notice of the residence of the witness, and of the name of the commissioner; .and provides that, “ on his failure to give such notice, unless waived by tbe adverse party, the deppsition shall be suppressed.” — Acts 1859-60, p„, 20. The waiver of. the required notice may be implied, a® well as express ; and it may well be inferred from any, affirmative act of the adverse party, amounting to an admission of the right of the party filing the interrogatories to take the deposition upon them without giving the notice.. The filing of cross-interrogatories, without objecting to the failure to give the required notice, must, foe deemed an,act of this character. The crossing of the interrogatories would be a work of supererogation, if the adverse party could not properly, proceed with.the taking of .the deposition.; .and to permit.the deposition to be afterwards suppressed, upon the ground of want-,of notice, ..would .enable parties to experiment;,,at the expense of their antagonists, upon. the testimony of the witnesses. — See McCreary v. Turk, 29 Ala. 244.

2. AlLt-he questions contained in the first cross»intevrogatory to the witness Bowden. received a substantial answer;,and as we can discover nothing to justify the conclusion that the witness.was. seeking to evade the disclosure oí his knowledge of the facts, we think the court did not err in refusing to suppress his deposition on this ground.

3. It is very clear that the defendant Travers, against whom judgment by default had been rendered, was a competent witness for his co-defendant, to prove that they were not partners. — Scott v. Jones, 5 Ala. 694; Gooden v. Morrow, 8 Ala. 489. It is true that he could not be compelled, against his consent, to testify for his co-defendant; and that the bill of exceptions does not, in express terms, state that he was willing to be examined ;■ but this court will nut presume that he was excluded o® this ground, when, it does not appear that any objection •whatever was made by him, but that on his being offered' as a witness the court refused to allow him to testify on objection, made by the plaintiff.

For this error, the j udgment must be reversed,, and the cause remanded.