Rock Island Plow Co. v. Schoening

BROWN, J. Action brought in justice court to recover a balance alleged to be due plaintiff from defendants, in which plaintiff had judgment for the amount claimed with costs. Defendants appealed to the district court upon questions of law alone, where the judgment of the justice was affirmed, from which they again appealed to this court. The only question presented by the assignments of error necessary to be considered is whether the justice erred in overruling defendants’ objections to the admission in evidence of two certain depositions [164] taken by plaintiff in support of the allegations of its complaint. The depositions were taken under the provisions of our statutes which authorize the taking of testimony of witnesses out of the state, and were in all things in conformity with the statute, save as pointed out in the objections presently to be mentioned. Notice of the time and place of taking the same was duly given to defendants’ counsel, but they did not appear or take párt in the proceedings, and they were in the due ■course of time returned by the officer before whom taken to the justice. When offered in evidence on the trial they were objected to by defendants on the grounds (1) that the notice of taking in each instance-was insufficient, in that there was no statement therein of the residence of the witness and no statement of the grounds for taking the deposition, as required by section 4667, R. R. 1905; and (2) that one of the depositions was incompetent, because the certificate thereto of the notary before whom it was taken did not state that the testimony of the witness, which was taken down by a stenographer, was read over to the witness after being transcribed, and that the pages thereof were not properly signed by the witness, the last page only being signed by him. It may be conceded for the purposes of the case that the depositions are defective in the respects pointed out, but in the absence of some suggestion of prejudice to defendants, or that the depositions are not-full, fair, and complete, the defects are not fatal. They amount to irregularities or informalities, and are cured by section 4678, R. L. 1905. That statute provides that no informality, error, or defect in any proceeding in connection with the taking of depositions shall be sufficient ground for excluding the same when offered in evidence, unless the party objecting thereto shall make it appear to the satisfaction of the court that the officer taking the same was not authorized to administer an oath, or that such party was by such irregularity, error, or defect precluded from appearing and cross-examining the witness. The purpose of this statute was to avoid the exclusion of depositions when offered on the trial of an action on purely technical grounds. Its language is broad and comprehensive, and includes all proceedings from the initiatory notice to the return of -the deposition by the officer, and, unless an error or defect be such as to render the deposition an absolute nullity, it is not fatal to its admission in evidence, in the ab [165] sence of the showing the statute requires'the objecting party to make. No such showing was here made. There is no claim that defendants were.in any way misled or prejudiced by the failure of the notice to state the residence of the witness or the reason for taking the deposition, nor is there any suggestion that the depositions as returned to the justice were .incomplete, or that they had been tampered with in any manner. Defendants rely wholly upon the contention that the defects referred to rendered the depositions absolute nullities, and hence they are not protected by the statute referred to. In this we do not concur. The errors and defects come clearly within the statute, and are informalities within our decisions. Smith v. Groneweg, 40 Minn. 178, 41 N. W. 939; Rachac v. Spencer, 49 Minn. 235, 51 N. W. 920. Other questions suggested in appellants’ brief are unimportant, present no reversible error, and require no special mention. Judgment affirmed.