Rachac v. Spencer

Vanderburgh, J. It is provided by 1878 G. S. eh. 73, § 36, that whenever the testimony of any person without this state is wanted in any civil action in any court in this state, the same may be taken by and before any officer authorized to administer an oath in the state or territory in which the testimony of such person may [238] be taken, upon notice to the adverse party of the time and place of taking the same. -Section thirty-seven (37) prescribes the manner in which the deposition shall be taken, and the nature of the. certificate of authentication. “The officer taking such deposition shall annex thereto a copy of the notice or order, and a certificate under his hand and official seal, (if he have one,) stating what office he held and ex-, ercised when taking such deposition, and that by virtue thereof he was then and there authorized to administer oaths, * * * and that each of such depositions were taken pursuant to such notice, and who, if any one, examined for the parties respectively. Such certificate shall be prima facie evidence of the matters therein stated.” The depositions, when returned, shall be opened, and subject to the inspection of either party. It is further provided by section thirty-nine (39) that “no informality, error, or defect in any proceeding under this statute shall be sufficient ground for excluding the deposition, unless the party making objection thereto shall make it appear to the satisfaction of the court that the officer taking such deposition was not authorized' to administer an oath then and there, or that such party was by such informality, error, or defect pre-. eluded from appearing and cross-examining the witness, and every objection to the sufficiency of the notice or to the manner of taking or certifying or returning such depositions shall be deemed to have been forever waived, unless such objections are taken by motion to suppress such depositions, which motion shall be made within ten days after notice in writing of the return thereof.” It will be noticed that the depositions taken under sections thirty-six (36) and thirty-seven (37) must be taken before an officer authorized to administer an oath, and this must appear by the certificate. . In the case before us the plaintiff served notice in due form upon the defendant’s-attorneys that the deposition of the plaintiff as a witness in this action would be taken before “John W. Plunkett, Esq., a notary public., duly authorized by the laws of North Dakota to administer oaths therein, ” at the tíme .and place therein mentioned. The officer’s certificate was in the statutory form. It recited that [239] he was a notary public, and exercised the power of that office in-taking the depositions, and that by virtue thereof he was authorized to administer oaths, concluding as follows: “Witness my hand and seal this 9th day of May, A. D. 1891. [Signed] J. W. Plunkett, Notary Public, Traill County, N. Dakota,” — but no seal was attached. The deposition was duly filed, but no notice of the return thereof was served. The defendant’s counsel therefore objected at the trial that the deposition was inadmissible, on the ground that the certificate was not under the seal of the officer. No other objection was raised. Further than this it was not claimed or attempted to be shown that the officer by whom the certificate purported to be signed was not such officer, or that he was not duly authorized to administer oaths “then and there.” Under the broad provisions of section thirty-nine, (39,) we are of the opinion that the omission of the seal was not necessarily fatal. We cannot say that the certificate was a nullity. If it must be considered a nullity notwithstanding the saving clauses in section thirty-nine, (39,) then the defect would not be waived by the failure of the defendant to move to suppress, if a notice of the return of the deposition had been duly given. But we think that the omission of the seal would not have been fatal in that case. The certificate, which is intended by the statute to be the sole authentication of the deposition, was not then a nullity. And we think it should be held good in this case, unless it was made to appear that Plunkett was not authorized to administer an oath “then and there.” It might be shown, if such were the ease, that the laws of Dakota did not so authorize, or that he was not an officer. Notice had been duly served of the taking of the deposition before him as a notary; and, though the defendant’s attorneys were not obliged to move to suppress, they knew that the plaintiff intended to take and use a deposition which was taken before him, pursuant to the statute. We think the construction put upon the statute should be sustained, and will work no injustice or prejudice in practice. It would have been sufficient if it had been taken before a justice of the peace without other authentication than his signature. The case is clearly distinguishable from De Graw v. King, 28 Minn. 118, (9 N. W. Rep. 636,) [240] and Colman v. Goodnow, 36 Minn. 11, (29 N. W. Rep. 338,) where a complete record had to be made within a specified time, and there was no saving clause in the statute. (Opinion published 51 N. W. Rep. 920.) Order affirmed. Gileillan, C. J., did not sit.