Heinzerling v. Agen

96 P. 223, 49 Wash. 647, 1908 Wash. LEXIS 641

Opinion

Per Curiam.

This case was before this court on a former appeal where a full statement of the facts will be found. Heinzerling v. Agen, 46 Wash. 390, 90 Pac. 262. A retrial was had in the court below after the case was remanded, and from a judgment in favor of the plaintiff, the defendant has again appealed.

A deposition taken and used at the first trial was read at the second trial, over objection, without any showing that the reasons for taking the deposition still existed, and this ruling is assigned as error. Bal. Code, § 6028 (P. C. § 992), provides that depositions shall not be read in evidence if it appears at the trial that the reasons for taking them no longer exist, but this court has held that the reasons for taking the deposition will be presumed to continue and the burden is on the adverse party to show the contrary. Hennessy v. Niagara Fire Ins. Co., 8 Wash. 91, 35 Pac. 585, 40 Am. St. 892. The remaining assignments are based on the denial of a motion for nonsuit, and on exceptions to instructions given, and the refusal to give instructions requested. The testimony was the same at both trials, and the objections urged against the denial of the motion for nonsuit and the charge of the court were fully considered on the former appeal, and decided adversely to the appellant. The instructions requested were embodied in the general charge of the court, in so far as they were proper or material, and finding no error in the record the judgment is affirmed.