Hopkinson v. Watson

17 Vt. 91

• Court: Supreme Court of Vermont
• Decided: March 15, 1843
• Status: Published

Opinion

After argument the opinion of the court was delivered by

Williams, Ch. J.

We are satisfied the deposition of Sarah Warren was improperly admitted in evidence by the county court. The certificate does not state any reason why the adverse party was not notified. Qur statute requires notice to the adverse party, if within thirty miles, whether the party resides within the state or not. The statute of New Hampshire requires notice to the adverse party, unless the party is out of the state, and more than twenty miles from the place of caption, and from the party proposing to take the deposition. In this case the plaintiff was not notified, and it is not certified, by the magistrate taking the deposition, that the plaintiff ¡resided out of the state, or more than twenty miles from the place of caption. As we cannot judicially take notice of any facts, to authorize the taking a deposition, which do not appear from the certificate, we cannot say there was any reason for taking this deposition ex parte.,,

The objection to the deposition of Lucy Willard is not valid. The parties were correctly described; and the omission of the initial letter in the middle name of Roxana H. Watson was of no consequence whatever. The admission of the deposition of Sarah Warren, and of the others similarly certified, was erroneous,- and for these reasons the judgment must be reversed.