Wanzer v. Hardy

By the Court, Cole, J. We can see no valid objection to the admission of the deposition of John N. Knapp, and therefore are .of -the opinion that the motion to suppress his deposition was [230] properly denied by the Circuit Court. The question whether the deposition shall be suppressed, is a matter of discretion (Underhill vs. Van Cortlandt, 2 J. C. R. 389; Dickens R. 50; 2 Danl. Chy. Prac. 1145), even where an irregularity has occurred in the examination of the witness; and by section 28, chap. 98, B. S., great discretion is given to courts in regard to the admission or rejection of depositions taken out of the state. If the objections taken to the deposition of Knapp be considered, it will be seen that they are exceedingly technical; except the objection that the commissioner does not certify that the witness was duly sworn before giving his evidence, and this objection is not sustained by the certificate of the commissioner. The commissioner distinctly certifies that the witness, after having been by him duly sworn to make true answers to the several interrogations annexed to the commission, made the foregoing answers in reply thereto. Again; it seems to be a very rigorous rule, where a party has had the benefit of a cross-examination, to hold that a deposition should be suppressed, because the names of all the parties to the bill are not inserted in the commission. Unless the parties are so numerous as to render it inconvenient to do so, it might be more desirable to have the. names of all the parties inserted in the commission; yet we do not think in this case a court would be justified in suppressing the deposition upon that ground. The order of the Circuit Court is affirmed, with costs.