American Publishing Co. v. C. E. Mayne Co.

ZaNE, 0. J.: This is an action to recover damages in consequence of a breach of the contract described in the complaint. On the trial of the cause the plaintiff offered to read in evidence a deposition taken under a stipulation of counsel, waiving all objections to the form of taking it, but reserving to each party the right to object to all questions and answers on the ground of irrelevancy, immaterialty, or incompetency. The notary public who took it stated in the caption that it was taken in pursuance of the stipulation, the time and place of taking it, and that the witness was duly sworn to answer the interrogatories attached. There was also a jurat at its conclusion, shorving that the witness was duly sworn. The defendant objected to its being read, on the ground that it was not properly certified bjr the officer taking it, and the court sustained the objection. This ruling the plaintiff excepted to, and assigned as error. The deposition had been on file in the case a year and a half before it was called for trial. The objection was not because any question or answer was irrelevant, immaterial, or incompetent. The defect ivas one that could have been remedied by adding a proper certificate, or by retaking the deposition. An objection to the form of a. question, or to the form of an answer, should be made when the question is asked or the answer is given; but if [321] the objection is on the ground of immateriality, irrelevancy, or incompetency, it may be taken when the offer to read the question or answer is made. If the certificate is insufficient or the deposition is defective in any other respect that can be remedied by retaking it, a motion to suppress should be made before the case is called for trial. The defendant could not remain silent until too late to remedy the defect, and then surprise the plaintiff by such an objection. Such a practice would be unfair. The defendant should have entered a motion to suppress the deposition before the case was called for trial. By failing to do so, he waived his right to such an objection. The correct practice is laid down in the case of Doane v. Glenn, 21 Wall. 33, in the following terms: “None of the objections to the reading of the deposition go to the testimony of the witness. All of them relate to* defects and irregularities which might have been obviated by retaking the deposition. It does not appear that any notice beforehand was given to the counsel of the plaintiffs that they would be made. In such cases the objection must be noted when the' deposition is taken, or be presented by a motion to suppress before the trial is begun. The party taking the deposition is entitled to have the question of its admissibility settled in advance. Good faith and due diligence are required on both sides. When such objections, under the circumstances of this case, are withheld until the trial is in progress, they must be regarded as waived, and the deposition should be admitted in evidence. This is demanded by the interests of justice. It is necessary to prevent surprise and the sacrifice of substantial rights. It subjects the other party to no hardship. All that is exacted of him is proper frankness.” To the same effect is Howard v. Manufacturing Co., 139 U. S. 199, 11 Sup. Ct. Rep. 500. This rule is not in [322] conflict with the statutes of this Territory. Such legal objections as the defendant relied upon in this case may be waived by a failure to insist on them in due season. It is true that the supreme court of California has held otherwise, under a statute similar to our own. On principle as well as authority, however, we are of the opinion that the rule as above stated is sound. It is unnecessary to consider the other errors assigned. For the reasons stated, the judgment of the court below is reversed, and the cause is remanded. Bartoh, J., and Smith, J., concurred.