Grigsby v. May

57 Tex. 255, 1882 Tex. LEXIS 130

Opinion

Bonner, Associate Justice.

We are of opinion that the objection to the depositions of D. IT. Edens and Lucinda Madden was one which pertained to the form and mariner of taking; and as the depositions had been on file for more than one entire day, and as'the objection was not made in writing, it should have been overruled under the provisions of our statute. R. S., art. 2235; Pasch. Dig., art. 3742; Kottwitz v. Bagby, 16 Tex., 659; Garner v. Cutler, 28 Tex., 182.

There was error in the action of the court in sustaining an oral objection to the depositions, for which the judgment must be reversed.

The court also erred in overruling the motion of plaintiffs to withdraw the announcement of readiness for trial, and continue the case, based upon the erroneous ruling above stated. The depositions had been on file for over two years, and no objection was made to the same until offered in evidence on the trial. Under the circumstances, the plaintiffs could well claim that they had been taken by surprise, and as the affidavit for continuance showed the materiality of the evidence, and was otherwise sufficient, the motion should have been sustained. Eor these errors, the judgment below is reversed and the cause remanded.

Reversed and remanded.

[Opinion delivered June 13, 1882.]