Opinion
(Filed 11 May, 1904.)
1. Depositions — Exceptions and Objections — Waiver — Code, secs. 1360, 1361.
The failure to insert the name of the commissioner in the commission to take the deposition is waived by the objecting party appearing at the taking of the deposition and making no objection thereto until after the trial was begun.
2. Depositions — Admissions — Code, sec. 1358.
Where a deposition is rejected in limine for the reason that the name of the commissioner was not in the commission, it is not incumbent on the party offering the deposition to show why it should be admitted.
3. Appeal — Depositions — Admissions.
An agreement by an appellee that a deposition should not be sent up in the case on appeal because not material to the decision, is an admission that a failure to send it up should not be prejudicial to the appellant, and in effect that the rejected evidence was material if wrongly rejected.
ACTION by Q. L. Womack against J. C. Gross, heard by Judge E. B. Jones, at January (Special) Term, 1904, of the Superior Court of RUTHERFORD County. From a judgment for the plaintiff, the defendant appealed.
McBrayer Justice for plaintiff.
Eaves Rucker for defendant.
On objection by the plaintiff the Court refused to permit the deposition of Susan Gross to be read in evidence, on the ground that the name of the commissioner was not inserted in the commission. The defendant excepted. The commission was properly signed, sealed and issued, and the plaintiff accepted service of the notice, which stated the time and place at which the (379) deposition would be taken and the name of the commissioner. Before said commissioner the plaintiff appeared without exception and cross-examined the witness. The deposition was taken November 21, 1903, and the trial took place January 25, 1904. There was no exception to the deposition till after the trial began.
The Code, sec. 1361, provides how and when an objection on account of irregularity may be made. Section 1360 provides that no deposition shall be quashed for irregularity after a trial begins, where the deposition has been filed sufficiently long before the trial to permit objection to be made sooner. The irregularity in failing to fill in the name of the commissioner to whom the commission was issued, and who duly took and returned the deposition, was waived by the plaintiff appearing before him by counsel without exception and cross-examining the witness, and by not making any exception till after the trial was begun. Willeford v. Bailey, 132 N.C. 403, where the commissioner was not named in the notice; Davison v. Land Co., 118 N.C. 369, where the commission was neither signed nor sealed; Carroll v. Hodges, 98 N.C. 419; Woodley v. Hassell, 94 N.C. 159; Barnhardt v. Smith, 86 N.C. 480; Kerchner v. Reilly, 72 N.C. 173.
The deposition having been rejected in limine for the reason given, it was not incumbent upon the defendant to put in evidence grounds under section 1358 for its admission, for that would have been a vain thing to do after the deposition had been already rejected as invalid. It is also true that when evidence is rejected, the party offering it should state its purport or send it up if written (as a deposition), that the Court may see that it was competent and relevant and that its rejection was injurious and not merely harmless error. Straus v. Beardsley, 79 N.C. 59. But the agreement of the appellee that the deposition should not be sent up "because not material (380) to the decision," is an admission that failure to send it up should not be prejudicial to the appellant, and in effect that the rejected evidence was material if wrongly rejected.
For the error in rejecting the deposition, there must be a
New trial.