Gaul v. Wenger

Gamble, Judge, delivered the opinion of the court. The only point in the case, which is of any importance, arises upon the admission of the deposition of Dehault, a witness for the plaintiff. The deposition was taken in St. Louis, and in it the witness says : “I am going to leave this state for Europe to-morrow.” The deposition was taken on the 9th day of September, 1853, and was read upon the trial, which commenced on the 15th of December following, more than three months after it was taken. The defendant objected to the reading of the deposition, upon the ground that the absence of the witness was not shown, so as to entitle the plaintiff to read the deposition. The court was satisfied with the statement of the witness that he' was going to Europe, and admitted the deposition with [543] out any other evidence that he was out of the reach of the process of the court. 1. The 20th section of the act concerning depositions, (R. C. 1845, p. 419,) states the cases in which depositions maybe read, and gives as the first, the case where “the witness resides or is gone out of this state.” When a deposition is offered, it must he made to appear to the court that a case exists iu which the law authorizes it to be read. If it is offered on the ground that the witness, whose residence is within the state, and less than sixty miles from the place of trial, has gone out of the state, it must be shown to the court that he has left the state. In the present case, it was shown that the witness intended to go to Europe three months before the trial. Whether he did go, or whether if he did he was still absent, did not appear. The court might have been satisfied, after such declaration upon oath, with very slight evidence that he had actually-gone and that he had not returned, hut it was not a compliance-with the statute to take the witness5 declaration of his intention-to go, as proof -that he did go ; nor would it be sufficient evidence that the witness was absent from the state at the time of' the trial, that he had gone to Europe more than three months-before. In these days of rapid travel, throe months will allow sufficient time for a man to leave the banks of the Mississippi and visit many parts of Europe and return home. The court should have required evidence that the witness was absent from the state. The judgment is reversed, and the cause remanded, the other judges concurring.