Keisker v. Ayres

By the Court: We think there was no error in striking out the plaintiff’s complaint by reason of his failure to attend and give his deposition when summoned to do so by the defendant. It is clear that he was not misled or left in ignorance as to the place at which the deposition was to be taken, because of the omission in the subpoena to specify the precise locality. He states in his affidavit that he went to the office of the Notary at the time appointed and remained “ several minutes.” It is clear, therefore, that he was not ignorant of the place, and that he understood the subpoena as requiring him to appear before the Notary at his office, which was the place designated in the notice served on his attorney. And it is equally apparent that if he went to the office of the Notary, at or about the appointed time, he left again immediately, for the purpose of evading the taking of his deposition. But the weight of the testimony tended strongly to show that he was not there at all at the time he states. When the motion to strike out the complaint was made, he was represented by his attorney, then present in Court, who resisted the motion, and made, no objection for want of notice, and if the plaintiff was entitled to be served personally with a notice of the motion, he has not been deprived of a full opportunity to be heard on its merits. On his motion to vacate the order striking out the complaint, he made as full a showing as he could have made on the original motion, and has not been deprived of an opportunity to be fully heard'on its merits.

Judgment and order affirmed.