Womack v. Gross. ( 1904 )

Clark, C. J.

On objection by the plaintiff the Court refused to permit the deposition of Susan Gross to be read in evidence, on the ground that the name of the commissioner was not inserted in the commission. The defendant excepted. The commission was properly signed, sealed and issued, and tbe plaintiff accepted service of tbe notice, Avbicb stated tbe time and place at wbicb tbe deposition would be taken and tbe name of tbe commissioner. Before said commissioner tbe plaintiff appeared without exception and cross-examined tbe witness. Tbe deposition was taken November 21, 1903, and tbe trial took place January 25, 1904. There Avas no exception to tbe deposition till after tbe trial began.

Tbe Code, section 1361, provides how and when an objection on account of irregularity may be made. Section 1360 provides that no deposition shall be quashed for irregularity after a trial begins, where tbe deposition has been filed sufficiently long before tbe trial to permit objection to be made sooner. Tbe irregularity in failing to fill in tbe name of tbe commissioner to whom tbe commission was issued, and Avbo duly took and. returned tbe deposition, Avas waived by tbe plaintiff appearing before him by counsel without exception and cross-examining the witness, and by not making any exception till after tbe trial was begun. Willeford v. Bailey, 132 N. C., 403, Avhere tbe commissioner Avas not named in the notice; Davison v. Land Co., 118 N. C., 369, where the commission was neither signed nor sealed; Carroll v. Hodges, 98 N. C., 419; Woodley v. Hassell, 94 N. C., 159; Barnhardt v. Smith, 86 N. C., 480; Kerchner v. Reilly, 72 N. C., 173.

Tbe deposition having been rejected in limine for tbe reason given, it Avas not incumbent upon tbe defendant to put in evidence grounds under section 1358 for its admission, for that Avould have been a vain thing to do after tbe deposition bad bpen already rejected as invalid. It is also true that Avben evidence is rejected, tbe party offering it should state its purport or send it up if written (as a deposition), that tbe Court may see that it was competent and relevant and that its rejection Avas injurious and not merely harmless error. Straus v. Beardsley, 79 N. C., 59. But the agreement of tbe appellee that the deposition should not be sent up “because not material to the decision,” is an admission that failure to send it up should not be prejudicial to the appellant, and in effect that the rejected evidence was material if wrongly rejected.

Eor the error in rejecting the deposition, there must be a

New Trial.