Plimpton v. Town Somerset, 42 Vt. 35

Plimpton v. Town Somerset

42 Vt. 35 | Vt. | 1869

The opinion of the court was delivered by

Wilson, J.

The only question presented by the exceptions is whether the deposition of Asa W. Marsh was properly admitted as evidence by the county court. Section 2 of chapter 36 of the General Statutes provides that ci any deposition taken for either of the reasons, and in the manner provided (by the statutes) shall be admissible as evidence in any civil cause for which it shall be takenY In order to render a deposition admissible as evidence, the statute requires that the caption of the deposition shall show, among other things, “ the style of the court, or name of the justice, or description of the board, or auditors, or referees, by whom the cause is to be tried, the time and place of the session, and names of the partiesand there must be at least a substantial compliance with the requirements of the statute in respect to the *38manner of taking a deposition, and in its certificate and caption, or the deposition should be rejected. It is clear, we think, that the deposition of said Marsh was not admissible as evidence in the trial of the cause in the county court. The case states that this cause was referred to Harmon Canfield, Joseph Dodge and John S. Pettibone, as commissioners, under the act of 1856. The caption of the deposition states that the deposition was taken to be used in a cause to be heard and tried by Harmon Canfield, John S. Pettibone and Joseph Dodge, referees, but it does not state whether it was a reference by rule of court, or by agreement of the parties'; it does not state before what court the cause was pending, or even state that a suit was pending before any court. It will be seen, on reference to the Act of 1856, that the powers and duties of commissioners under that act were entirely different from those of referees, in any case where referees could be legally appointed. If the deposition had been taken to be used in the county court in this cause, a statement in the caption, that the cause so pending in the county court was to be tried by commissioners, would not render the deposition inadmissible as evidence in the county court, notwithstanding the commissioners had no authority to try the case. But the caption stating that the deposition was taken to be used before three persons named as referees, and not referring to this cause as the one in which referees had been appointed, or in which the deposition was to be used, there' is nothing to connect the deposition with the suit in the county court, and the caption is as defective, by reason of not referring to the suit, as it would be if it had simply stated that the cause was to be tried by a board of arbitrators.

The judgment of the county court is reversed, and the cause is remanded.