Laurel Printing & Publishing Co. v. James

Citations

• 29 Del. 185
• 6 Boyce 185
• 97 A. 601
• 1916 Del. LEXIS 22

Syllabus

<p>1. Depositions—Exceptions—Diligence.</p> <p>Where a commission to take depositions out of the state was issued January 8, and on the tenth defendant's counsel was notified that depositions would be taken in foreign state on the twenty-seventh, at which time the resident judge of the county was in court in another county so that objection could not be made to him at that time or before the date fixed for taking deposition, and defendant served notice on the commission, formally objecting and notifying him that he would file objections in the Superior Court, which objections were filed on the first day of the next term, defendant did not waive objections to the taking of the deposition, though he did not participate in the taking.</p> <p>2. Depositions—Return—Sufficiency.</p> <p>Where depositions are taken by a commissioner in a foreign state, the commissioner must certify his proceedings, showing the execution of the commission, and must either take down in writing the testimony of the witnesses, or if the testimony be taken by a stenographer, the appointment of the stenographer and the fact that he took proper oath must appear in the certificate; and a return, merely showing that the testimony was taken down by a stenographer duly sworn according to law, and that the shorthand notes were signed by the respective witnesses, is insufficient.</p> <p>3. Depositions—Right to Take—Right of Parties.</p> <p>Under the Constitution, giving the Superior Court power to direct the examination of witnesses who are aged, infirm, or going out of the state upon interrogatories de bene esse, to be read in evidence in event of death, departure, or inability of the witness to attend, a nonresident plaintifi cannot have his own deposition taken and introduced in evidence unless he is aged, infirm, or unable to attend.</p>