Carter v. Wakeman

• Decision Date: 31 October 1904
• Citation: 78 P. 362,45 Or. 427
• Parties: CARTER v. WAKEMAN.
• Court: Oregon Supreme Court

78 P. 362

45 Or. 427

CARTER v. WAKEMAN.

Supreme Court of Oregon

October 31, 1904

Appeal from Circuit Court, Jackson County; H.K. Hanna, Judge.

Action by Nancy Carter against Miles S. Wakeman. From a judgment in favor of defendant, plaintiff appeals. Reversed.

H.D Norton, for appellant.

George H. Durham, for respondent.

MOORE C.J.

This is a second appeal by plaintiff from a judgment rendered against her, a statement of the case appearing in the former opinion. Carter v. Wakeman, 42 Or. 147, 70 P. 393. Prior to the last trial, defendant's counsel, desiring to take the depositions of W.P. Hillis and Sarah C. Wakeman filed affidavits showing the materiality of the testimony expected to be secured from such persons and of their inability to attend as witnesses in consequence of the decrepitude of each, and, based thereon, the court made an order permitting their depositions to be taken before a designated person, specifying the notice required and the time within which such evidence might be secured. Thereupon counsel for the respective parties stipulated that the testimony of such persons might be taken by the referee appointed; that at the completion of their examination the deposition was to be signed by the witness giving it; that the referee was to make a typewritten copy thereof and file the same, together with the original, within 10 days; and that such copy might be used as evidence on the trial in the same manner as the original could be employed. The depositions, having been taken pursuant to the court's order and in the manner stipulated, were offered in evidence at the trial, and, over plaintiff's objection that each was incompetent, irrelevant, and immaterial, and that no foundation for its introduction had been laid, they were received, and exceptions reserved. It is contended by plaintiff's counsel that, as no proof was made tending to show that the witnesses continued infirm, the court erred in admitting their depositions.

The statute regulating the taking of written declarations under oath, made upon notice to the adverse party, so far as deemed material herein, is as follows: "The testimony of a witness in this state may be taken by deposition, *** (4) when the witness, otherwise liable to attend the trial, is nevertheless too infirm to attend." B. & C.Comp. § 826. "If a deposition be taken under subdivision *** 4 of section 826, before the same can be used, proof shall be made that the witness *** still continues *** infirm." Id. § 840. The bill of exceptions shows that no compliance with the provisions of the latter section was attempted. It is insisted by defendant's counsel however, that the depositions were admissible in evidence on the grounds: (1) That they were practically secured pursuant to a stipulation; (2) it is to be presumed that the reason assigned for taking them, when used so soon after they were filed, continues, unless the contrary is shown; (3) the evidence contained in each was only cumulative, and therefore not prejudicial; and (4) if their admission was improper, the...