Morgan v. Halverson , 9 Wis. 271 ( 1859 )

By the Court,

Cole, J.

We think there can be no doubt but that the deposition of Neils S. Thompson was improperly admitted in evidence, on the trial of this cause. It appears that the reason for taking it in the first instance, was that he was about to go out of the state, and was not to return in time for the trial. But when the deposition was offered in evidence, it was objected to on the part of the plaintiff in error, upon the ground that the cause for taking it no longer existed, as the witness at the time of trial, was within the county. And that such was the fact, was proven by the defendant in error, who testified that the witness was then in the county, not having left the state as he expected to do. Under these circumstances the deposition was clearly inadmissible.

Section 19, chap. 137, R. S., 1858, provides that"no deposition shall be used if it shall appear that the reason for taking it no longer exists; provided, further, that if the party producing the deposition in such case, shall show any sufficient cause, then existing, for using the deposition, it may be admitted.” This statute is quite explicit, and devolved upon the defendant in error the necessity of showing some good and sufficient cause, then existing, for using the deposition. This was not done, although it appears the defendant in error well knew that the reason for taking the deposition did not exist. The deposition should, therefore, have been excluded from the consideration of the jury.

The judgment of the circuit court is, therefore, reversed, and a new trial ordered.

Dixon, C. J., took no part in the decision of this case, having been of counsel.