Frederick Mortensen Hinch Edward Mills John.

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162 N. C. 393, 78 8. E. 274. 83, 90 Pac. 200.

88 Rock Island Plow Co. v. 86 Bishop v. Billiard, 227 HI.

Schoening, 104 Minn. 163, 116 N. 382, 81 N. E. 403.

W. 356. 87Beckman v. Waters, 161 Cal.

84Krohn, Fechheimer ft Co. v. 581, 119 Pae. 922.
Sohn, 68 W. Va. 687, 70 S. E. 699.



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804 NOTARIES PUBLIC. [§ 344

ministration of the oath to a witness by a commissioner ap-
pointed by the court, and is signed by such commissioner as
such officer and as a notary, the certificate is not objectionable,
as the signature as notary may be ignored.** The omission of
the seal of the officer to a deposition is not fatal where a stat-
ute exists authorizing acta without a seal.**

§ 344. Olerioal Erron.— Defects and irregularities in tak-
ing and in the examination of witnesses will be disregarded
if they are merely formal and do not a£Fect the rights of the
parties.** The failure to show an adjournment in the certifi-
cate is a mere irregularity,** and where a certificate states
that the ** adverse party was notified and did attend," when
the statement should read ''did not attend," the fact being
otherwise shown, the error will be held a mere clerical error
not invalidating the deposition.**

Where a commissioner, in describing the commission, mis-
describes the name of the clerk who issued it, it in no way
detracts from such authority.** When the caption of the
deposition properly gives the names of the parties a subse-
quent error in the name is not a fatal error.** Care should be
exercised by notaries, however, to avoid such errors.

§ 346. Correction of Errors. — ^It has been held proper for
a referee to return depositions to a notary in another state,
so that they might be properly authenticated, there being no
motion to suppress before the trial.**^ A deposition may be
returned to the commissioner for proper signature.**

§ 346. Betum of Depositions; Lost Deposltloni.— The stat-

as Alcorn v. GHleseke, 158 OaL Twigg ft Oo., 80 Yt. 229, 84 Atl.

396, 111 Pac. 98. 811.

89 Carpenter v. Gibson, 82 Vt. 98KendaU v. limberg, 69 DL
336, 73 AtJ. 1030. 355.

90 Hewlett V. Wood, 67 N. T. 94 Id.

304; Bust v. Eckler, 41 N. Y. 488; 95 Bird v. Pox (Mo. App.), 193

Forrest v. Kissam, 7 Hill (N. Y.) S. W. 941.

463; Semmens v. Walters, 55 Wis. 96 Creamer y. Jaekson^ 4 Abb.

675, 13 N. W. 889. Pr. (N. Y.) 413; Keeler v. Vander-

91 Hodges Fiber Carpet Co. v. pool, 1 Code Bep. N. S. (N. Y.)
ITugro Mfg. Co., 203 HI. App. 404. 289; Semmens v. Walters, 55 Wis.

99Ktainoni ▼. Bichardson, 675, 13 N. W. 889; 2 Wait'i Pr.

707.



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§ 346] DBPOSITIOKS. 205

utes usually state how the deposition must be inclosed and to
whom it must be delivered.^ Such provisions must be com-
plied with. The directing of a deposition to a master commis-
sioner, instead of the clerk of court, as required by the stat-
ute, has been held to warrant the sustaining of an objection
to the deposition.** But in another case, where the envelope
containing the deposition was properly sealed, the title of the
case indorsed thereon, the postage prepaid, and the envelope
was mailed to the magistrate, the statute was held fully com-
plied with. The seal of the notary across the flap of the en-
velope was not necessary.**

The word ** transmit" in a statute does not mean personal
carrying by the officer, nor necessarily sending by mail, but
requires the officer to adopt such means as will insure safe
transfer of the document without tampering.* The fact that
the deposition is carried by an interested attorney is not
ground for suppression where the seal is unbroken and there
is no evidence of tampering.*

A stipulation for the waiver of signatures of witnesses, and
for the taking of testimony by shorthand, to be subsequently
transcribed, does not operate as a waiver of anything relating
to transmission of the deposition, and will not permit delivery
to an attorney instead of the clerk of court.* Depositions de-
livered by the commissioner, who took them to the attorneys,
and by them kept until trial and presented in court unsealed,
cannot be admitted in evidence.* A deposition opened by the
clerk of the court, in pursuance of an order of the court, and
marked ** filed,'' has no reason to be suppressed.* Where a
deposition is regularly taken and transmitted and filed and
is lost, the court may permit the supplying of the contents of

»7Po8t, § 350 et «eg., Statu- SO'Leary v. Schoenfeld, 30 N.

tory Requirements. B. 374, 152 N. W. 679.

MSealy v. WilliBton (Ky.), 117 « Missouri & N. A. B. Go. v.

S. W. 959. Johnson, 115 Ark. 448, 171 8. W.

09 Jenkins v. Atlantic Coast 478.

Line R. Co., 83 S. C. 473, 65 S. B. 4 Louisville, N. A. & C. Ry. Co.

636. V. L. Heilprin & Co., 95 III. App.

lO'Leary v. Schoenfeld, 80 N. 402.

D. 374, 152 N. W. 679. »Sumvan v. Eddy, 164 HI. 391,

45 N. E. 887.



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206 NOTABIES PUBLIC. [§ 347

the lost record, by permitting the reading of the stenog-
rapher's notes.® The court in its discretion may allow to be
read copies instead of original papers annexed by the deponent
to his deposition.'

§ 347. Fees of Offlcen.— Usually the fees of notaries taking
depositions are fixed by statute, but there is no statute in Illi-
nois regulating the fees of commissioners employed to take
depositions in suits pending in other states.® The same fees
will be allowed state oflScers taking depositions for federal
courts as are allowed United States commissioners and clerks.^
The notary is entitled to such fees as are fixed by statute for
the words transcribed, as where he writes the testimony or
employs a stenographer, but he cannot charge where his em-
ployer hires a stenographer.*® Where in transcribing short-
hand notes the notary copies a record or other paper, he is en-
titled to the fees fixed by statute, which are the same as those
received by circuit clerks.**

§ 348. Objections to Taking of DepositionB. — Objections to
a deposition because of irregularity or want of authority in
taking must usually be by motion to suppress the deposition*'
before the time of trial.*® Objections to the materiality, com-
petency or relevancy of the testimony taken by deposition are
usually made at the time of trial.** Objections to the form, or
incompetency of witnesses, must be made before final hear-
ing.*® The evidence of an interesetd witness must be objected
to either wh^n the deposition was taken, if the other party



« Cr&ndall v. Greeves, 181 Mo. 473, 94 Pac. 777; Pemree t. Tharp,

App. 235, 168 B. W. 264. 118 Miss. 107, 79 So. 69.

7L'Herbette v. Pittafleld Nat. l« Scott v. Wilson, — Iowa — ,

Bank, 162 Mass. 137, 38 N. E. 368, 179 N. W. 941; Allen t. AUen, —

44 Am. St Bep. 354. Nev. — , 196 Pac. 843.

tFairchild v. Michigan Cent. B. 14 Scott v. Wilson, — Iowa — ^

Co., 8 III. App. 591. 179 N. W. 941; Allen v. Allen,

9Jerman v. Stewart, Gwynne A — Nev. — ^ 196 Pac. 843.

Co., 12 Fed. 271. General objections at the trial

10 Ante, I 36, Compensation and are confined to substance. Tkomaa
Fees of Notaries. ▼. Dnnaway, 30 HI. 873.

11 Beuscber v. Attorney General, IB Moshier r. Elnox College, 82
30 Ky. L. Bep. 109, 97 S. W. 397. IlL 155.

18 King V. Green, 7 CaL App.



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§ 349] DEPOSITIONS. 207

was present, or on motion before trial.** If no objection is
made to the form of a question before the notary taking the
deposition, it cannot be excluded at the time of trial because
the question was leading.*^ Objections to interrogatories
should be made before trial.** A misdescription in an inter-
rogatory of a promissory note, as bearing twelve per cent in-
terest instead of ten, is not such variance as will exclude the
answer.*® If there is no appearance on the other side and no
cross-interrogatories, it is doubtful whether the opposite party
can complain that the last general interrogatory was not an-
swered. The rule is that it should be answered, as unless it is
answered it is impossible to say that the witness has told the
whole truth; but where it is apparent that the witness could
not testify further except to contradict his answers to the spe-
cific interrogatories, the omission is harmless.*® Opponent's
deposition cannot be suppressed for want of full answers of
witnesses to opponent's questions. The objections should come
from the party injured.**

A defect on the face of the notice should be presented by
motion to suppress before the trial.** An objection that the
name of the witness was not in the notice must be taken before
trial.** Objection for lack of a stamp must be taken, by a
motion to suppress, before trial.** Slight but misleading in-
accuracy in name ascribed to the defendant corporation in the
deposition is not grounds for excluding the deposition.**

§ 849. Waiver of Objections. — ^An objection to the mere
form of a question is waived unless made before the notary at



16 Loekwood y. MiUs, 39 lU. 602. » Stowell v. Moore, 89 HI. 563.

nWelborn v. Faulconer, 237 90 Semmens v. Walters, 55 Wis.

Mo. 297, 141 8. W. 31. 675, 13 N. W. 889.

1« Jacksonville, T. & K. W. R. M Cole v. Choteau, 18 HI. 439,

Co. V. Peninsular Land, Transp. MVoorhees v. Cragun, 61 Ind.

& Mfg. Co., 27 Fla. 1, 157, 9 So. App. 690, 112 N. E. 826.

661, 17 L. R. A. 33, 65; Cincinnati, WRockford, R. I. & St.L. R.

I., St. L. & C. Ry. Co. V. Howard, Co. v. McKinley, 64 IlL 338.

124 Ind. 280, 24 N. E. 892, 8 L. R. «4 Loekwood v. Mills, 39 HL 602.

A. 593, 19 Am. St. Rep. 96; Mis- 86 Merchants Despatch Tram.

souri Pac. R. Co. v. Ivy, 71 Tex. Co. v. Leysor, 89 HI. 43.
409, 9 S. W. 346, 1 L. R. A. 500, 10
Am. St. Rep. 758.



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208 NOTARIES PUBLIC. [§ 350

the time the question is propounded.^ The taking part in the
taking of a deposition and the cross-examination "of a witness
is a waiver of irregularities in the taking of the deposition.*'
After a deposition has been read without objection upon one
trial it cannot afterwards be objected to on account of any
defect existing at the time it was used.^

tSBedmond t. Qtdncj, O. A K. when it was itipulated that the

C. B. Co.y 225 Mo. 721, 126 8. W. witnesses should be examined be-

159. fore that officer, all formalities

S7 Allison y. Chicago, St. P., M. touching the dedimus are waived.

& O. B. Co., 37 8. D. 334, 158 N. Rockford Wholesale Grocery Co.

W. 452, 15 N. C. C. A. 183. v. Stevenson, 65 HI. App. «09. '

Where the party appears before MBraekett r. Kikirk^ 20 BL

the officer taking the depositions App. 525.
and cross-examines the witnesses,



STATUTOBY BEQUIBEMENTB.

I SSa Alabama^DEPOSITIONS— taken by commissioner. Written
interrogatories to be filed with the clerk of the court. NOTICE — of ten
days to be given adverse party. Commissioner subpoenas witnesses.
Penalty for failure to appear, $100. Commissioner to reduce the answers
of witness to writing, having sworn him to speak the truth, the whole
truth and nothing but the truth. Commissioner's certificate of the
manner, place and personal knowledge of the witness's identity, that the
witness has no interest in the result, is presumptive evidence of the
fact stated by him. The deposition to be sent to the clerk of the court,
and may be read in evidence unless previously objected to. The testi-
mony of a nonresident witness may be taken conditionally and perpetu-
ated, to be received in evidence.

I 351. Alaslcar— D£;P0SITI0N8— may be taken of a witness in an
action out of the district any time after service of the summons of
defendant, and in a special proceeding any time after a question of fact
arises; may be taken in the district under the same circumstances when
the witness is a party to the action, by the adverse party; when the
witness resides more than one hundred miles distant, or is about to go
more than that away; when infirm; when the testimony is required upon
motion, or where the oral examination is not required; may be taken
outside the district upon commission issued from the court or without
commission before a commissioner appointed by the governor of the
district to take depositions in any state or country. Commissions may
issue from a clerk of the court, or by a justice of the peace in a cause
in his own court, on the application of either party upon five days'
previous notice to the other. Unless parties otherwise agree, commission



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§ 353] DEPOSITIONS. • 809

to be isBaed to a judge, juBtice of the peace, notary or elerk of a court.
Interrogatories may be issued with the eommission as parties or court
may agree. Oath of witness to be taken and the deposition to be
certified to the court in a sealed envelope, directed to the court clerk
or justice who issued the commission, delivered by mail or usual con-
veyance. In the district the deposition may be taken before the clerk
of a court of record or anyone authorized to administer oaths. Three
days' notice of time and place to be given adverse party, one day
additional for every twenty-five miles, unless the court otherwise de-
cides. Either party may attend and examine the witness. Deposition
to be written by the officer taking or by the witness, or by a disin-
terested person, in the presence and under the direction of the officer.
When completed it shall be read to the witness, subscribed to by him,
and corrected by him if necessary — corrections and additional state-
ments to be part of the deposition. Officer to append his certificate
under his official seal, stating hour, place and date of taking; that
witness was duly sworn to tell the tmth, the whole truth and nothing
but the truth; that it was read to witness and by him subscribed to.
Same to be directed and delivered as before mentioned.

I 352. Arizona^DEPOSITIONS— may be taken where the witness is
aged, infirm, sick, on official duty, or unable to attend court, residing
out of the state or county or fifty *mile8 if om trial, has or is about to
leave the state or county, or when party desires to perpetuate testimony.
Either party may apply for a commission to take by giving five days'
notice to opposite party, with interrogations attached to notice, and
name of witness with residence and place of taking. WHO CAN TAKE
— ^IN THE STATE — the commission is to be addressed to any clerk of
the superior court, or notary of the county. WITHOUT THE STATE —
in the United States — ^to any clerk of a court of record having a seal,
any notary, or commissioner of deeds for this state. WITHOUT THE
UNITED STATES — ^to any notary, minister, commissioner, or charge
d'affaires, or any consul general, consul, vice consul, commercial agent,
vice commercial agent, deputy consul or consular agent of the United
States resident in the country. MANNER OP TAKING — either party
may attend the examination and interrogate, but cannot in such cases
object to questions at the trial unless they did so at the examination, if
oral, or unless objections are filed within five days to the written inter-
rogatories. The officer taking the deposition shall summon witness, and
fine and imprison for faUure to appear and testify. The answers to
questions shall be written, sworn and subscribed to by witness, certified
by the officer, sealed up with other papers. The officer must write his
name across the seal, indorse names of parties to the suit and the
witnesses, direct same to the clerk of the court or Justice where the
commission issued or, if no commission, where case is pending. May bt
returned by mail or personally.

I 353. Arkansas— DEPOSITIONS— IN THE STATE— taken before
any judge or clerk of a court of record, justice of the peace, mayor,
14



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210 NOTARIES PUBLIC. [§ 354

notary. OUT OF THE STATE — ^before a commissioner appointed by
the governor of this state, judge of court, justice of the peace, mayor,
notary, or any person empowered by a eommission directed to him by the
consent of the parties or by order of court. The clerk of any court of
record in the county must certify under his seal that such officer was
an acting judge or justice of the peace, duly commissioned at the
time. Depositions taken out of the state, sealed and directed as here
provided, may be delivered to the party taking the same, his agent
or attorney. NOTICE — reasonable notice to be given adverse party.
POWER AND DUTY OF OFFICER— to subpoena the witnesses, may
issue warrant of arrest for contempt, if witness fails to appear. Officer
to decide all objections to questions, noting such as are in doubt. Power
to prevent insulting or too lengthy questions. Statement of witness
must be written in the presence of the officer taking it. Certificate of
officer to state the time and place of taking; that the witness was sworn
before he gave his testimony, that the testimony was written, read to
and subscribed by him in the officer ^s presence. Must state by whom
testimony was written, which of the parties, in person or by agent or
attorney, was present. When the deposition is completed, it is to be
sealed by the officer and directed to the clerk of the court where suit
is pending.

I 364. Califomiar-^WHO MAY TAJKE— IN THE STATE— a judge
or any officer authorized to administer oaths, upon serving five days'
notice, and one day for every twenty-five miles of travel of witness
unless shorter time set by judge, when order must be sent, with notice,
to the adverse party. OUT OF THIS STATE — ^by a commission issued
from the court, under court seal. It may be directed to any person
agreed upon by the parties, or, if they do not agree, to any judge,
justice of the peace or commissioner selected by the court or judge
issuing it. If commission is issued by a justice of the peace, it must
have attached to it the certificate, under seal, of the superior court
stating that the party issuing it is acting as a justice of the peace.
Ten days' notice and one day for every 300 miles from court to place
of taking. OUTSIDE THE UNITED STATE&— a minister, ambassador,
consul, vice consul or consular agent of the United States in such
country, or any person agreed upon by the parties, can be taken by a
commission appointed by the court under its seal. Discretion allowed
as to deposition of party testifying. Parties may agree upon the inter-
rogatories, and mode of taking. Oath to be administered to witness.
Deposition to be certified to the court. It must be inclosed in a sealed
envelope, directed to the clerk of the court and forwarded by mail or
usual conveyance. The judge authorizing the commission may issue
subpoena for other witnesses. Either party may attend examination and
put questions, provided each party shall pay cost of his own examination.
The officer taking may demand a deposit from each party sufficient to
defray the expense of such. If a party refuses to deposit he waives his
right to examinoii



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§ 356] DEPOSITIONS. 211

I 865. Oolorad(>— DEPOSITIONS — may be taken when witness is
party or beneficiary, resides out of or is about to leave county, is infirm
or unable to attend trial, or for other cause. WHO MAY TAKfc — ^IN
THE STATE — all courts, judges, justice and clerk thereof, justices of
the peace, notaries, within their district and under their official seals
and commissioners. Out of the state, commissioner of deeds, notary,
justice of the peace or person agreed on by parties. FOBM — none
specially, follow form of the state ordering the dedimus. NOTICE—
depends on residence. Upon five days ' notice to the adverse party depo-
sitions may be taken out of the state by commission issued by the clerk
of the court on written interrogatories, same to be attached to the
commission issued to a person agreed upon by the parties or by the
judge; if they cannot agree, to any judge, justice of the peace, notary
or to a commissioner of deeds. The adverse party may file and have
attached to the commission cross-interrogatories by giving three days'
notice or may apply for oral examination. If either party giving notice
fails to attend, the attending party shall be entitled to $5 per day
for each day's attendance and to 6c per mile for each mile traveled,
same to be taxed by the court where suit is pending, and for which
attachment may issue. Adverse party may submit written interroga-
tories instead of attending. Complete deposition must be carefully read
to witness, subscribed, certified, sealed and directed to elerk of court
where action is pending or to person agreed upon.

I 366. Connecticut— IN THE STATE — may be taken by a judge or
clerk of any court, justice of the peace, notary, commissioner of the
superior court. OUT OF THE STATE — ^by a notary, commissioner ap-
pointed by the governor, or any magistrate having power to administer
oaths. OUT OP THE UNITED STATES— by any foreign minister,
secretary of the legation, consul or vice consul of the United States
resident in that country. His official character can be proved by the
secretary of the United States. Court may issue commission to any
person in the military or naval service of the United States who may
administer oaths, etc., to persons in the service. Judges of the superior
court, court of common pleas or district court of Waterbury, when not
in session, may issue a commission to take depositions of persons out
of this state, notice being given to adverse party. Commissioners ap-
pointed by the laws of any other state or government to take testimony
in this state, may apply to the judge of any court of record, justice of
the peace, notary or commissioner of the superior court, for a subpoena
or capias to compel the appearance of any witness. Upon the refusal
of the witness to comply, the officer issuing may commit them to prison.
Subpcenas may be issued by any judge or clerk of any court, justice of
the peace, notary or commissioner of the superior court, upon request,
for the appearance of any witness before him, to give his deposition in
a civil action, when such party is going to sea or out of the state, if
sixty years of age or lives more than twenty miles from the place of
trial, and may take kis deposition on refusal to appear, the magistrate
may issue a capias. If the witness refuses to depose, the magistrate may



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212 NOTARIES PUBLIC. [j 357

•ommit him to priion until ht complies. Retarned to court nnsaaled or
with seal broken, shall be rejected by the court. If the adverse partj
appears on notice and the partj giving such notice fails to appear at
the time and place stated, then costs shall be allowed to the adverse
party. The returned deposition remains in the custody of the clerk
of the court. Seasonable notice must be given to the adverse party,
his agent or attorney, or left at his place of abode. WITNESSES—
cautioned to speak the truth, carefully examine, subscribe to their depo-
sition, make oath before the authority taking, the authority shall attest
the same and certify that the adverse party or his agent was present
(if so), or that he was notified, and shall also certify the reason of
taking the deposition, seal it up, direct it to the court where it is
to be used, and deliver it, if desired, to the party at whose request it
was taken. PERPETUATING TESTIMONY— party desiring it may
petition in writing any judge of the superior court, stating reasons,
subject-matter, name of witness and persons interested. If no reason
for the contrary, the judge shall arrange for such. Persons taking depo-
sitions may adjourn from time to time, giving notice to parties present.
Depositions so taken must be sealed up and directed to the clerk of
the county superior court where some of the petitioners reside; if
nonresidents of the state, then where some of the respondents reside,
and he shall open and file them.

I 867. Delaware— If it appears by affidavit necessary, the justice
may make a rule that the deposition be taken before a commissioner
named by him, unless otherwise agreed; the party applying shall file in
writing all the questions to be put to the witness, giving at least four
days' notice to the adverse party, who may file other questions. The
justice shall forward a copy of the rule and questions to the com-
missioner. Deposition to be written, signed by the witness, certified
to by the commissioner and Sealed up and sent to the justice. The wit-
ness must first be sworn by the commissioner, to answer the questions
truly; neither party shall be present and no questions to be put but



Online LibraryFrederick Mortensen Hinch Edward Mills JohnAmerican notary and commissioner of deeds manual: the general and statutory ... → online text (page 25 of 50)