During the lifetime of A. Kershman a notice was served on the defendant that he would take the depositions of certain witnesses on the 20th day of July, 1880. Kershman died on the 18th day of said month. Notwithstanding this fact, the depositions were taken, the defendant declining to appear because of the death of the plaintiff in the action, and there had not been any person substituted in his stead.
At the proper time the defendant filed a motion to strike from the files or suppress the depositions, because at the time they were taken there was no plaintiff in the action which motion was overruled and the cause afterward submitted to the court.
We think the court erred in not sustaining the motion. When A. Kershman died there was no plaintiff in the action, and depositions could not be legally taken. The rights of whoever might be substituted as plaintiff would not be bound
Reversed.