Kentucky Union Co. v. Lovely

| Ky. Ct. App. | Mar 14, 1901

Opinion of the court by

JUDGE GUFFY

Reversing.

This is an action for damages to real estate. Issue was joined as to title of the land and the question of damages. The bill of exceptions shows that after the jury had been impaneled andi sworn there were filed with the clerk deposition® as one of appellees, as well as several witnesses for them. Appellants then filed exceptions to the depositions because of defective notice, or rather, as to part of appellants who had filed separate answers no notice at all was given or attempted. The exception was overruled. On the trial the court, over objection, permitted appellees to read these depositions. A verdict and a judgment was rendered for appellees, and after motion for new trial had been overruled this appeal was prosecuted.

Section 585 of the Civil Code of Practice provides, “No dejjosition shall be read on a trial, unless before the commencement thereof, it be filed with the papers of the case.” This provision of the Code- is plain and unambiguous, and it is decisive of the question presented;.

The depositions were not filed before the commencement of the trial, and it was clearly error to- permit same to be read on the trial. The testimony proven in .the depositions was material, and probably in a large measure- influenced the verdict. The notice given to take the depositions was not executed on appellants Hagins and Blanton, nor their (attorney of record, and was not eve-n addressed to them, yet the court permitted same to be read against them on the trial, when there was no waiver of notice by cross-examination by any person. The exception to the depositions should have been sustained.

Other questions argued by counsel are n-o-t neces-saTy to a. determination of the case, and are not decided. For the reasons given, the judgment is reversed, and the cause remanded for a new trial, and for proceedings consistent herewith.