Mitchell v. Haggenmeyer

By the Court : The deposition of the plaintiff Mitchell was improperly admitted in evidence. Section 1880 of the Code of Civil Procedure, as amended, and which took effect July 1, 1874, provides that ‘ ‘ parties to an action or proceeding, or in whose behalf an action or proceeding is prosecuted against an executor or administrator, upon a claim against the estate of the deceased,” shall not be witnesses in the cause. The deposition, though taken before, was offered in evidence after this amendment took effect, and if Mitchell had been living at the time of the trial it is clear he could not have been examined as a witness, and his deposition can stand on no better footing. The fact that the deposition was admissible evidence, as the law stood when it was taken, does not affect the question. It is competent for the Legislature to change or modify the rules of evidence at any time. Nor [110]was the right to use the deposition as evidence saved to the plaintiff by section 2104 of the Code of Civil Procedure, Had Mitchell been produced as a witness at the trial he certainly could not have been permitted to testify in the case; his deposition, being a mere substitute for his personal appearance in court, is necessarily subject to any objection that could have been taken to his testimony if' offered orally.

Judgment and order reversed, and- cause remanded for a new trial.