Scholes v. Ackerland

Treat, C. J. But one of the assignments of error need be considered. The plaintiffs notified the defendants that they would sue out a commission to take the testimony of Seymour Rank. Interrogatories were propounded by both parties, and attached to the commission. The commissioner returned the deposition of Seigmund Rank. In August, 1851, the defendants filed exceptions to the deposition; the chief ground of objection being that no notice had been given to take the testimony of the witness. At the May term, 1852, on the calling of the cause for trial, but before the jury was sworn, the exceptions were heard by the court and overruled. The conclusion of the court was erroneous. The dedimus directed the commissioner to take the testimony of one person, and under it the deposition of another person was taken. The special authority was not pursued. The names were essentially variant, and clearly indicated different individuals. The discrepancy cannot be disregarded on the principle of idem sonans. Nor were the defendants guilty of laches, in moving to exclude the deposition. They gave notice of the motion shortly after the deposition was returned, and more than six months before the cause was reached for trial. It was in the power of the plaintiffs to have called up the exceptions, and have had them disposed of. They could not therefore allege surprise. The judgment is reversed, and the cause remanded. Judsrment reversed.