Cornelius v. Partain

39 Ala. 473

• Court: Supreme Court of Alabama
• Decided: June 15, 1864
• Status: Published

Opinion

A. J. WALKER, C. J.

The depositions of two witnesses were rejected as evidence when offered on the trial of the cause. The objection was, that the written notice of the filing of the interrogatories, required by section 2320 of the Code, had not been given. Section 2328 of the Code directs, that “all objections to the admissibility of the entire deposition in evidence, must be made before entering-on the trial, and not after; unless the matter is not disclosed in the deposition, and appears after the commencement of the trial.” The objection went to the entire deposition. It was not within the exception allowed by the statute. It therefore could not be made on the trial.—McGill v. Monette, 37 Ala. 49; Thompson v. Rawles, 33 Ala. 29; McArthur v. Carrie, 32 Ala. 75. If it'be admitted that any excuse can be allowed for the failure to make the objection before the trial, the facts disclosed in the record certainly constitute none, which ought to be entertained.

Reversed and remanded.