421. (417.) No change in vacation-Exception.-259. No change of venue shall be granted in vacation, unless the opposite party has had ten days' notice.

[1881 S., p. 240. In force September 19, 1881.]

422. (418.) Before whom taken.-287. Depositions of witnesses, taken within or without the state, may be taken, according to the regulations hereinafter provided, before any judge, justice of the peace, notary-public, mayer or recorder of a city, clerk of a court of record, or commissioner appointed by the court to take depositions; but depositions shall not be taken before any person being of kin to either party, or interested in the action.

The deposition of a party to the suit may be taken under the same rules as that of any witness. Bourgette v. Hubinger, 30 Ind. 296.

It is proper for a witness who deposes to the identity of a written instrument to attach a copy thereof to the deposition. Gimbel v. Hufford, 46 Ind. 125.

The officer taking the deposition can not decide legal questions. Carpenter v. Dame, 10 Ind. 125.

Both parties may take the deposition of the same witness, and either party may use both depositions. Woodruff v. Garner, 39 Ind. 246.

Depositions must be taken before an officer authorized by the laws of this state to take the same. Thompson v. Wilson, 34 Ind. 94.

Commissioners of other states appointed by the governor of this state, may take depositions. Tedrowe v. Esher, 56 Ind. 443.

Deputy clerks of the circuit court may act for the clerk in taking depositions. Trout v. Williams, 29 Ind. 18.

423. (419.) Notice Contents-Service.-288. A party wishing to take depositions shall give notice to the adverse party, if there be only one person; if there be several, to any one of them who is a real party in interest, his agent or attorney. Such notice shall specify

First. The cause or matter in which the deposition is to be used. Second. The court or tribunal in which the trial is to be had. Third. The time and place of taking the deposition, and the names of the witnesses.

Notice may be served on an attorney, and the service proved by his written acknowledgment. Coffin v. Anderson, 4 Blackf. 395.

The service of a notice by copy is good. Prather v. Pritchard, 26 Ind. 65.

A reasonably specific description of the place of taking is sufficient. Hobbs v. Godlove, 17 Ind. 359.

A slight variance, as to the place of taking, between the notice and certificate is immaterial. Harvey v. Osborn, 55 Ind. 535.

Presence of a party at the taking cures defects in the notice. Prather v. Pritchard, 26 Ind. 65; Long v. Straus, 124 Ind. 84.

If a notice is insufficient, a motion to suppress the deposition should be made. Pape . Wright, 116 Ind. 502.

The notice need not specify the officer before whom the deposition will be taken. Harvey v. Osborn, 55 Ind. 535.

424. (420.) Time to travel, etc., allowed.-289. The adverse party shall be allowed a reasonable time to travel from his usual place of abode to the place of taking the deposition, by the ordinary route of travel, exclusive of the day of service, the day of taking the deposition, and intervening Sundays. If served on an attorney or agent, a reasonable time shall be allowed him to communicate the same to the party.

The courts will judicially notice the facilities for travel in determining the time given. Manning v. Gasharie, 27 Ind. 399; Hipes v. Cochran, 13 Ind. 175; Fitzpatrick v. Papa, 89 Ind. 17.

425. (421.) Notice, how served.-290. The notice may be served in the same manner, and by any person authorized to serve a summons for a witness. If neither the party nor his agent or attorney reside in this state, the notice may be filed in the clerk's office or published three weeks successively in the county in which the suit is pending.

The notice may be served by copy. Prather v. Pritchard, 26 Ind. 65.

426. (422.) When court may order taking.-291. In all actions the court may order the taking of depositions, whenever deemed necessary to determine the rights of the parties, or to expedite the trial of causes; and may, if necessary for that purpose, order a continuance until the next term.

If the deposition is not used, no question can be made as to the order authorizing its taking. Hendry v. Hendry, 32 Ind. 349.

427. (423.) When taken and used.-292. In all actions depositions may be taken by either party, in vacation or term time, at any time after service of summons, without order of court therefor. They may be used in the trial of all issues, in any action, in the following

cases:

First. Where the witness does not reside in the county, or in a county adjoining the one in which the trial is to be held, or is absent from the State.

Second. When the deponent is so aged, infirm, or sick, as not to be able to attend the court or other place of trial, or is dead.

Third. When the depositions have been taken by agreement of parties, or by the order of the court trying the cause.

Fourth. When the deponent is a state or county officer, or a judge, or a practicing physician, or attorney at law, and the trial is to be had in any county in which the deponent does not reside. In either of the foregoing cases, the attendance of the witness can not be enforced.

Fifth. When notice is given fixing the time of taking any deposition on a day in term time, the court may, if in session, or the judge thereof in vacation, on notice given by the adverse party of the time and place of hearing the motion, fix another day for such taking, and the court, on the hearing of such motion, may fix the time for such taking, from which there shall be no appeal.

Depositions can not be used in a cause, unless the reasons for using them exist at the time of trial. Stockton v. Graves, 10 Ind. 294; Hazlett v. Gambold, 15 Ind. 303; O'Connor v. O'Connor, 27 Ind. 69; Haun v. Wilson, 28 Ind. 296; Indianapolis, etc., R. R. Co. v. Stout, 53 Ind. 143; Wehrs v. State, 132 Ind. 157.

If a deposition shows cause for taking it will be presumed that the cause continued to exist. Hunsinger v. Hofer, 110 Ind. 390; Railway Co. v. Hubbard, 116 Ind. 193. Depositions of witnesses about to leave the state may be taken. Stockton v. Graves, 10 Ind. 294; Percival v. Groff, 8 Blkf. 233

Depositions of witnesses in a county next to the one where the trial is had can not be taken unless the same come within the exceptions of the statute. Hazlett v. Gambold, 15 Ind. 303; O'Connor v. O'Connor, 27 Ind. 69.

Depositions to preserve testimony may be taken while the cause is pending on appeal. Long v. Straus, 124 Ind. 84.

Deposition of the adverse party may be taken and used, though such party is present at the trial. Scott v. Wagon Works, 48 Ind. 75.

Parties to a suit may have their own depositions taken. Abshire v. Mather, 27 Ind. 381; Bourgette v. Hubringer, 30 Ind. 296.

If depositions are taken by agreement they may be used though the witness is present at the trial. Estep v. Larsh, 21 Ind. 183; Shirts v. Irons, 37 Ind. 98.

Depositions of aged and infirm persons residing in the county may be taken. Norris v. Norris, 3 App. 500.

The suppression of a deposition does not necessitate the special leave of the court to take another of the same witness. Ramsey v. Flannagan, 33 Ind. 305.

A deposition can not be retaken without leave. Kirby v. Cannon, 9 Ind. 371; Scott v. Scott, 124 Ind. 66.

Neither the ex parte affidavit of a witness nor a suppressed deposition is competent. Houston v. Bruner, 59 Ind. 25.

Depositions are not, per se, secondary evidence. Millner v. Eglin, 64 Ind. 197.

Witnesses can only be compelled to attend court in the counties of their residence, or of an adjoining county. Alexander v. Harrison, 2 App. 47.

It need not appear at the time of taking the deposition that it will be competent evidence on the trial. Wehrs v. State, 132 Ind. 157.

428. (424.) Deponent not obliged to leave county.-293. A witness is not obliged to attend for examination upon a deposition in any other county than that of his residence, but may consent to do so.

429. (425.) When not read-Exception.-294. No deposition shall be read in evidence on the trial of a cause, if at that time the witness is produced in court, unless the deposition has been taken by the agreement of the parties or by the order of the court.

Depositions taken by agreement may be read though the witness is present at the trial. Estep v. Larsh, 21 Ind. 183; Shirts v. Irons, 37 Ind. 98.

If the witness is not produced in court his deposition may be read. Louisville, etc., R. W. Co. v. Hubbard, 116 Ind. 193.

The deposition of the adverse party may be read though such party is present at the trial. Scott v. Wagon Works, 48 Ind. 75.

430. (426.) Attendance, how enforced.-295. The officer taking the deposition shall have power to summon and compel the attendance of witnesses. In case of the refusal of a witness to attend or testify, such fact shall be reported by the officer to any circuit or superior court of the county, or the judge thereof, and such court or judge shall order such witness to attend and testify; and on failure or refusal to obey such order, such witness shall be dealt with as for a contempt.

The officer taking the deposition can not punish for contempt, but must report the facts to the court. Burtt v. Pyle, 89 Ind. 398; Keller v. Goodrich Co., 117 Ind. 556; Wehrs v. State, 132 Ind. 157.

431. (427.) All officers to report non-attendance.-296. The provisions of the last section shall extend to all officers and commissioners authorized to take depositions in this state, to be read in the courts of other states or countries.

432. (428.) Oath-Manner of examination.-297. The deponent shall first be sworn by the officer to testify to the truth, the whole truth, and nothing but the truth, relating to the cause or matter for which the deposition is to be taken; and he shall then be examined by the party producing him, and then by the adverse party, and by the officer or parties afterward, if they see cause.

The certificate of the officer need not give the form of the oath administered. Ramsey. Flannagan, 33 Ind. 305; Welborn v. Swain, 22 Ind. 194.

The narrative form, if unobjected to at the time of taking, is good. Myers v. Murphy, 60 Ind. 282.

Writings may be attached to a deposition as a part of the evidence of a witness. Thom v. Wilson, 27 Ind. 370; Thompson v. Wilson, 40 Ind. 192; Gimbel v. Hufford, 46 Ind. 125.

433. (429.) By whom written and signed.-298. The deposition shall be written down by the officer, or by the deponent, or by some disinterested person, in the presence and under the direction of the officer; and after the same has been carefully read to or by the deponent, it shall be subscribed by him.

A party or his attorney may write the questions, but not the answers. Snyder v. Snyder, 50 Ind. 492; Murray v. Phillips, 59 Ind. 56.

434. (430.) Certificate.-299. The officer shall annex a certificate to the deposition, stating the following facts:

First. That the deponent was sworn according to law.

Second. By whom the deposition was written; and if written by the deponent or some disinterested person, that it was written in the presence and under the direction of the officer.

Third. Whether or not the adverse party attended.

Fourth. The time and place of taking the deposition, and the hours between which the same was taken.

And the officer shall sign and attest the certificate, and seal the same, if he have a seal of office.

A statement by the officer that a party did not appear "in person or by attorney," is sufficient. Hay v. State, 58 Ind. 337.

The notice need not name the officer, but if it do, and another take the deposition, it may not therefor be suppressed. Harvey v. Osborn, 55 Ind. 535.

Motions to suppress, for defect in certificate, must be certain in their objections thereto. Murray v. Phillips, 59 Ind. 56.

The failure to certify, whether the adverse party attended, is fatal. Thieband v. Sebastian, 10 Ind. 454; Madison, etc., R. R. Co. v. Whitesel, 11 Ind. 55.

The names of the witnesses need not be set out, nor that the deposition was read to or signed by them. Prather v. Pritchard, 26 Ind. 65; Guthrie v. Buckeye Coal Co., 66 Ind. 543.

The form of the oath administered need not be stated. Ramsey v. Flannagan, 33 Ind. 305; Welborn v. Swain, 22 Ind. 194.

Clerks of circuit courts must certify depositions under the seal of the court. Harvey v. Osburn, 55 Ind. 535.

A justice of the peace of another state can not amend his certificate in this state. Baber v. Rickart, 52 Ind. 594.

If the official character of a notary public is properly certified to the omission of his seal from the certificate will be immaterial. Pape v. Wright, 116 Ind. 502.

Depositions may be returned for the correction of certificates. Hale v. Matthews, 118 Ind. 527.

Mere clerical errors should be disregarded. Payne v. West, 99 Ind. 390. Certificates under seal of commissioners of other states are presumptive evidence of their official character. Tedrowe v. Esher, 56 Ind. 443.

The

435. (431.) Sealing-Inclosing-Directing-Indorsing.-300. officer taking the deposition shall seal up the same in a sufficient paper envelope, and direct the same to the clerk of the court in which the action is pending, indorsing on the envelope the names of the parties and of the witnesses whose depositions are inclosed.

Objections as to the indorsements must be made before the deposition is published. Lingenfelser v. Simon, 49 Ind. 82.

436. (432.) Cause of taking shown at reading.-301. When a deposition is offered to be read in evidence, it must appear to the satisfaction of the court that the cause for taking and reading it still exists.

If a deposition shows cause for taking it, such cause will be presumed to have existed at the time of the trial. Hunsinger v. Hofer, 110 Ind. 390; Railway Co. v. Hubbard, 116 Ind. 193; Wehrs v. State, 132 Ind. 157.

437. (433.) Commission only for foreign country.-302. When a deposition is to be taken within or without the state, but within the United States, no commission shall be necessary for taking the depo