67 Iowa 170 | Iowa | 1885
It is pi’ovided by section 2678 of the Code that “if the statements of a pleading are known to any person other than the party, such person may make the affidavit, which shall contain averments showing affiant competent to make the same.” The question raised by the motion is whether it is shown by the averments of the affidavit that the attorney was competent to make it. It has been held that the competency of the affiant may be shown by a general averment that the affiant has knowledge of the statements of the plead
When it is proposed to use depositions in one cause which have been taken in another, the parties have the same right to except to them, or move for their suppression, as though they had been taken in that cause. But, under these ftrovissions, it is very clear that they could have no opportunity to avail themselves of this right if the depositions are neither filed in the cause nor leave to use them obtained before the trial is entered upon. It is held in Shaul v. Brown, supra, that no notice was required to be given before the trial commenced of the purpose to use the depositions on the trial. But the statutes governing the right to except to, or move for the suppression of, depositions have been materially changed $ince that decision. We think the court erred in overruling the objection.
• As we reverse the judgment on other grounds, we do not consider the question of the sufficiency of the evidence to sustain the judgment.
Reversed.