| Ill. App. Ct. | Feb 21, 1902
delivered the opinion of the court.
It does not appear that any harm was done by the thoughtless act of the clerk in opening the deposition without a special order of the court.
After this was done, counsel waited for nearly two months, and until the cause was about to be called for trial, before'moving to strike the deposition from the files because it had been improperly opened by the clerk. Meantime, from June 21st until July 5th, the deposition had been out upon a receipt given by the defendant. The affidavit of counsel to the effect that there was no general rule or order of court for the opening of depositions did not establish the non-existence of such rule or order. Hules of court must be proved by the record; their absence may be proven by the testimony of the clerk. Sturtevant v. Sullivan, 69 Ill. App. 47" date_filed="1897-03-08" court="Ill. App. Ct." case_name="B. F. Sturtevant Co. v. Sullivan">69 Ill. App. 47; Roby v. Title Guarantee & Trust Co., 166 Ill. 336" date_filed="1896-11-11" court="Ill." case_name="Roby v. Title Guarantee & Trust Co.">166 Ill. 336.
The motion was properly overruled. Counsel afterward moved to suppress the deposition. This motion was not made in apt time.. While the motion and reasons alleged therein are set forth in the abstract, the abstract does not show that there is in or absent from the deposition any of the things complained of. The rules of this court require that all matter upon which a reversal is asked must be abstracted.
We may say, however, that it does appear in the certificate of the notary that “ the interrogatories and answers thereto were reduced to writing * * * and were read over to said witness and thereupon the same was signed and sworn to by the deponent.” .Neither question nor answer not put or not answered was pointed out; nor were any save technical objections made thereto, and these nearly two months after the same was filed.
As depositions may be used by either party and may, if suppressed,be retaken,objections to form should be promptly made; mere irregularities from which no harm appears to have resulted do not require that a deposition be suppressed. Ind. & Ill. Ry. Co. v. Wilson, 77 Ill. App. 603" date_filed="1898-08-31" court="Ill. App. Ct." case_name="Indiana & Illinois Southern Ry. Co. v. G. S. Wilson & Son">77 Ill. App. 603; Hawks v. Lands, 3 Gil. (Ill.) 227; Ill. Cent. R. R. Co. v. Cowles, 32 Ill. 116" date_filed="1863-04-15" court="Ill." case_name="Illinois Central Railroad v. Cowles">32 Ill. 116; Adams v. Russell, 85 Ill. 285.
It is urged that the court should have continued the cause. The defendant relied upon the promise of a witness to attend. The witness could not have been attached for his failure to attend. If a party relies upon the promise of a witness and fails to have a subpoena served upon him, he is not entitled, as of right,-to a continuance if the witness does not appear. Day et al. v. Gelston, 22 Ill. 103.
The witness lived in another county and the defendant had ample time after the suit was begun to have taken his deposition; indeed this could easily have been taken at the same time and place as was that of the plaintiff. See Marble v. Bonhotel, 35 Ill. 240" date_filed="1864-04-15" court="Ill." case_name="Marble v. Bonhotel">35 Ill. 240-249.
The testimony of the defendant was given and does not appear to us, as it did not to the court below, as overcoming the evidence of his note and the deposition of the plaintiff. The defendant says : “ Í understand the garnishment matter with the $46.55 left still $150 due Humphreys and I told Steere to pay it and he paid it.” And again : “As soon as I received the letter from Mr. Steere, I supposed the whole matter was closed up, but when he asked me to come down I did so.”
The reasons given by the court are immaterial; the question is, was it error to refuse to continue.
The court committed no error in allowing the deposition of the plaintiff to be read in rebuttal.
Finding no error requiring a reversal of the judgment, it is affirmed.