78 P. 362 | Or. | 1904
delivered the opinion.
This is a second appeal by plaintiff from a judgment rendered against her, a statement of the case appearing in the former opinion : Carter v. Wakeman, 42 Or. 147 (70 Pac. 393). Prior to the last trial, defendant’s counsel, desiring to take the depositions of W. P. Hillis and Sarah C. Wakeman, filed affidavits showing the materiality of the testimony expected to be secured from such persons and of their inability to attend as witnesses in consequence of
The statute regulating the taking of written declarations under oath, made upon notice to the adverse party, so far as deemed material herein, is as follows: “ The testimony of a witness in this State may be taken by deposition * * (4) when the witness, otherwise liable to attend the trial, is nevertheless too infirm to attend”: B. & C. Comp. § 826. “ If a deposition be taken under subdivision * * 4 of section 826, before the same can be used, proof shall be made that the witness * * still continues * * infirm”: B. &C. Comp. § 840. The bill of exceptions shows that no compliance with the provisions of the latter section was attempted. It is insisted by defendant’s counsel, however, that'the depositions were admissible in evidence on the grounds: (1) That they were practically secured pursu
1. Considering the legal principles last presented in the order stated, the rule is universal that a party can waive any statutory provision that inures to his benefit, unless his agreement to relinquish a known right violates the rules of public policy. Thus, if a party by stipulation expressly waives all objections to the manner of taking a deposition, reserving only questions of the relevancy, materiality, and competency of the testimony, he thereby abandons every right to which he is entitled, except such as are specially excepted: Ex parte Kindt, 32 Or. 474 (52 Pac. 187). In the case at bar the only departure from a strict performance of the requirements of the statute consented to by the defendant consists in the admission of a typewritten copy of the testimony instead of the original. This was not an express waiver of the right to insist on making the necessary proof of the' continuance of the witnesses’ infirmity.
2. Though the statute provides that a thing once proved to exist continues as long as is usual with things of that nature (B. & C. Comp. § 788, subd. 33), we do not think the deduction which the law expressly directs to be made from particular facts can be invoked to overcome the express provisions of the statute, for, if this were so, it would only be necessary in the first instance to make a showing so as to secure the taking of a deposition, thereby imposing on the adverse party the duty of overcoming the presumption by direct evidence.
The court undoubtedly admitted the evidence so objected to on the assumption that the agreement of the parties waived the performance of the statute requiring proof to be made that the witnesses still continued to be infirm before their depositions could be used ; blit, believing that the stipulation was not sufficient for that purpose, the judgment is reversed and a new trial ordered. •
Reversed.