Henry v. Caswell

CHIPMAN, P. J.

This is an appeal, within sixty days, from a judgment of nonsuit, on statement of the case, in favor of defendants dismissing the action, “upon the grounds,” as recited in the judgment, “that the plaintiff had failed to prove a sufficient case, inasmuch as the evidence introduced was in the form of depositions and that said depositions were and are incompetent.”

The only objection made to the admissibility of the depositions was that a notary’s seal was not attached to the certificate of the commissioner. The depositions were taken under the following commission, appointing E. C. Ferguson, of Chicago, Illinois, to perform that office:

“Commission to Take Depositions.

“Title of Court and Cause.

“The People of the State of California, to E. C. Ferguson, 1450 Otis Building, Chicago, Illinois:

“Know you, that, trusting in your fidelity and circumspection we have appointed you Special Commissioner, and do hereby authorize you to administer the necessary oaths, and to take the depositions of Charles S. Hayes and Thomas F. Hanks, residing at 1508-1512 Tribune Building, City of Chicago, County of Cook, State of Illinois, in answer to the interrogatories, direct and cross, annexed hereto, in the matter of the above entitled cause.

“All of which matter, together with this writ, you will return to this Court, acording to law, in a sealed envelope, directed to the clerk of said Court, at the City of Sacramento,

[16]

County of Sacramento, State of California, and forward the same, by mail or express, or other usual channel of conveyance.

“Witness the Honorable C. N. Post, Judge of Department 3 of said Court, and the seal thereof, at the City of Sacramento, County of Sacramento, State of California, this 29th day of October, 1912.

“ (Seal) E. E. Pfund, Clerk.

“H. W. Hall, Deputy.,

This commission was issued pursuant to an order of the judge of said court “that a commission issue out of and under the seal of this court, directed to E. C. Ferguson, 1450 Otis building, a person agreed upon by and between the parties, residing at the city of Chicago, Cook County, state of Illinois, to take the testimony of Charles S. Hayes and Thomas F. Hanks,' residing at the same place, as witnesses on behalf of the plaintiff,” etc. A stipulation was entered into by the parties that the depositions of the persons above named “be taken before E. C. Ferguson, 1450 Otis building, a notary public, in and for the city of Chicago, county of Cook, state of Illinois. . . . The annexed are interrogatories proposed by the plaintiff on which such depositions are to be taken. ’ ’