Rooney v. Southern Building & Loan Ass'n

41 S.E. 648, 115 Ga. 400, 1902 Ga. LEXIS 427

• Court: Supreme Court of Georgia
• Decided: April 29, 1902
• Status: Published

Opinion

Little, J.

1. To render the evidence of a witness, taken by written interrogatories, admissible in the first instance, the statute requires that two commissioners shall act in taking the depositions of the witness ; and if for any reason the parties waive this provision of the statute, and agree that such may be taken by one commissioner, it is a compliance with the terms of the agreement which makes the execution legal, and authorizes the admission of the evidence so taken. It follows that, to bring about this result, the terms of the agreement must he strictly observed.

2. When in a suit brought by a corporation an agreement was made by the parties that certain interrogatories sued out by the plaintiff might be executed by “ , provided such commissioner will certify that he is not interested in said suit, . . or in plaintiff as officer, member, or otherwise,” and the interrogatories were executed by one commissioner who only certified that “ I am not of counsel or kin to any of the parties to this suit, and that I am not interested in said suit,” the evidence so taken is inadmissible on the trial of the case, because the terms of the agreement under which the depositions were to be taken, so as to make them competent evidence, were neither strictly nor substantially observed.

3. The principles of law which by the record appear to he involved in this case have, in several adjudications made by this court, been ruled in favor of. the plaintiff in the court below. No error appears to have been committed by the trial judge, except as indicated above ; and the judgment is reversed alone for the reason stated in the second beadnote.

Judgment reversed.

All the Justices concurring, except Lewis, J., absent.