Woosley v. McMahan

Gould, Associate Justice. The statute under which depositions of witnesses may be taken, and read in evidence makes them “subject to all legal exceptions which might be made to the interrogatories and answers were the witness personally present before the court giving evidence.” (Paschal’s Dig.,,art. 3733.) It is further provided that “no objection to the form of depositions, or to the manner of taking them in any suit, shall be heard, unless they are in writing, and notice thereof is given to the opposite counsel before the trial of the suit commences.” (Paschal’s Dig., art. 3742.) It appears by bills of exception that the depositions of the witnesses Weaver and Stockton were objected to as hearsay evidence, and as secondary and irrelevant evidence, and that the court overruled the objections, on the ground that they were not made in writing before the commence: ment of the trial. If evidence is inadmissible because it is hearsay, or because it is secondary in its character, or because it is irrelevant, these are objections which might be taken if the witness were present before the court, and not objections going merely to the form and manner of taking the depositions. In support of the ruling of the court below, we are referred by counsel to Allen v. Atchison, 26 Tex., 628. That case involved a different question, viz: the mode of excepting to the answers made by a party to the suit to interrogatories propounded to him by the opposite party, as containing matter not responsive or permissible—a question arising and decided under a different statute. (Paschal’s Dig., art. 3750.) The objection to Weaver’s evidence that it was hearsay, was well taken, and, as it extended to his entire testimony, his deposition should have been excluded. Without inquiring as to whether Stockton’s deposition should also have been excluded, it is sufficient to say that the court erred in admitting improper evidence to go to the jury, though objected to [65] at the proper time and in the right mode, and that we are unable to say that the evidence admitted was immaterial. Indeed, looking to the amended petition of plaintiff and. to the charge of the comt, it is difficult to arrive at the issues intended to be made, or on which the case was tried. The defendant does not seem to be responsible for this, for he-filed repeated and special exceptions to the amended petition, and it appears by bill of exceptions that the court refused to-act on the last exception, because “ a former general and special demurrer had been overruled by the court-on said pleadings, at a former term of the court.” The record does not otherwise show the action of the court on any of the exceptions taken. If in fact the court had overruled the exceptions to the amended petition because it was argumentative and uncertain and not a clear statement of a cause of action, it was error to do so; and the results of the error are manifest in the'uncertainty as to the issues on which the jury intended to pass. The court might well have entertained the special-exceptions, to which its attention was called, although in fact other exceptions had been before overruled. It has not been deemed necessary to consider the minor error assigned. Because the court erred in admitting improper testimony, the judgment is reversed and the cause remanded. Reversed and remanded.