McGinley vs. McLaughlin, 2 B. Mon 302

Chief Justice Robertson delivered the Opinion of the Court. Service of notice on the second of the month on the defendant, living only two miles from Louisville, was not unreasonable as to time for taking depositions in that city on the next day.

Nor does the simple circumstance that the notice designated no particular hour for taking the depositions, entitle the party notified to object to the reading of them on the trial. ' Had he attended on the 3d, and been nevertheless unreasonably deprived of the privilege of cross examination, proof of that fact might have been sufficient for rejecting the depositions; he ought to have attended on Ihe day fixed.

That a deposition is wholly in. the hand writing of the counsel of the party using it is not, per se, a good objection to it—the pi actice of counsel writing the deposit’n should be rebuked, and not indulged unless both parties be present and consent. ^Suit against two, abated as to one, and judgment against the defendants should be understood as againsl him only who was before the Court as defendant—the use of the term defendants is a clerical misprision and amendable. Guthrie for plaintiff.

Nor was the isolated fact that the depositions were wholly in the hand writing of the counsel of the party who took them, sufficient, per se, for rejecting them. The practice of permitting depositions to be thus written is unsafe, and positively injurious, and therefore it ought to be rebuked and altogether discontinued, unless the parties are present and consent.

But still the official certificate of the magistrate who superintended, the taking of the depositions must be accredited; and nothing else appearing, we must presume therefore, that the responses of the deponents have not been colored or distorted, but purport to be precisely such as they were intended by the deponents themselves to have been. Moreover, in ibis case, the facts proved are such as to exclude all suspicion of essential discoloration.

And, although the judgment as exhibited in the transcript before us, is against the defendants, yet it must be legally interpreted as a judgment against McGinley alone; because the suit having been abated as to his partner, on a return of “not found,” there was only one defendant, and in such a case, defendants and defendant are deemed as synonymous as they could have, been had the declaration been filed against one alone, and in such a case even if the judgment be literally erroneous, it is amendable as a direct misprision. Judgment therefore affirmed.