Louisville & Nashville Railroad v. Brown

BBICKELL, C. J. The deposition of Gates was taken by the appellee, returned, and filed in court. The appellant did not cross-examine the deponent; but its right to use the deposition, as an instrument of evidence, was not the matter of an objection by the appellee; and as the question we are to consider is presented, he must be deemed to have consented that the deposition should be used by the appellant, as the evidence of a competent witness, legally taken. A party who has cross-examined a witness, under our practice, acquires a right to use the deposition of the witness, as if it had been taken on his behalf, if his adversary, at whose instance it was taken, declines to use it. — Stewart v. Hood, 10 Ala. 600; Garnett v. Yoe, 17 Ala. 74. If the party at whose instance a deposition is taken, without notice to his adversary that he does not intend to use such deposition, enters on the trial, and permits his adversary to introduce the deposition, he must be regarded as waiving all objections to the evidence [413] contained in it, which his adversary could cure by a cross-examination, or by taking the deposition in his own behalf. The objection to the particular answer is not because of its irrelevancy, nor because of the incompetency of the witness to testify to the fact, but is limited to the sole ground, that it is not responsive to the interrogatory propounded to the witness. It is, perhaps, true that this answer furnishes the sole reason of the appellee for refusing to use the deposition. Its materiality is shown upon its face; and if the fact is as stated, it was probably fatal to the appellee’s right of recovery. The appellant was suffered to read all the deposition which preceded this answer, without objection, without regard to its effect as evidence, whether prejudicial or beneficial. If the deposition had been offered as evidence by the appellee, and the appellant had made the objection to this or any other answer of the witness, not on the ground that it was illegal evidence, but that it was not responsive to the interrogatory, it would have been too late during the trial. — Clement v. Cureton, 36 Ala. 120; McCrary v. Turk, 29 Ala. 244; Saltmarsh v. Bower, 34 Ala. 613. The reason of the rule is, that the objection is founded on a defect which can be cured. It is unlike an objection to the relevancy or competency of the evidence. A party relying on an objection of this character, must make it at the time the deposition is proposed to be read. Then his adversary makes the deposition his owrn evidence, as if it had been taken on his behalf; and then he has the right to be apprised of the objection, so that, if it is well taken, he may decline to use the deposition for any purpose. The appellee had full opportunity, before this particular answer was reached, to have objected to it; but no objection was made, until the preceding answers were before the jury, and he had the benefit of them. We think the objection came too late, and the Circuit Court erred in sustaining it. The judgment is reversed, and the cause remanded.