Dye v. Bailey

2 Cal. 383

• Court: California Supreme Court
• Decided: October 15, 1852
• Status: Published

Opinion

Murray, Justice.

On the trial of this cause, the plaintiff read in evidence certain depositions, which were objected to by the defendant, on the ground that the certificate of the officer before whom they were taken, was not in conformity with the statute, and that the depositions did not show that they were taken upon the day.of notice.

We have before decided that this mode of taking testimony to be used in civil causes, is in derogation of the common law, and that the officer must follow the statute strictly. Every requisition of the statute ifiust appear upon the deposition, to entitle it to admission. In this case the certificate of the officer is defective, and the depositions should have been excluded.

It is contended by the respondent, however, that the objections were not taken in time; that the exceptions should have been filed before the time of trial.'

There is nothing in the statute, which renders this necessary, and in the absence of statutory provision or an exp ress rule of Court upon the subject, the objection can be made at any time before the depositions are read in evidence.

We have carefully examined the facts of this case, with the view of sustaining the judgment of the Court below, without the assistance of this evidence, but are unable to do so without usurping the province of a jury.

Judgment reversed, and new trial ordered.