
    John B. Saxby and Julius Curtiss, Pl’ffs in Error, vs. Alanson S. Neal, Def’t in Error.
    Where a suit is commenced against two, and the process has been served only upon one, and the other neither appears or pleads in the cause, the deposition of the party who is not served with process cannot be examined ex parte as a witness for the plaintiff, and his deposition thus taken,, he. read. ifl. evidence, on the. trial, as against his co-defendant.
    In such a case, th.e Attorney for the plaintiff should have served a notice upon the Attorney of the defendant who appeared and plead,, to produce his co-defendant or his deposition takén in conformity with the Statute, op the trial. * Upon failure to comply with such notice, or the production of the. party,.hjs affidavit might have been, read in evidence on¡ the trial.
    Error to, Rock County- Circuit Court.
    This was an a,ction of1 Assumpsit, brought against thei plaintiffs in error,, by the defendant in error,, by summons; but the summons was served only upon one of them, and, the other was not brought into Court. The party sum-, moned appeared and pleaded issu.ably; but the other de-. fendant did not appear or plead.
    On the trial the defendant in error offered in evidence, the deposition of Curtiss, the other plaintiff' in, error, assumed to have been taken under the provisions, of the Statutes of 1841. Objection was made to the reading of the 'deposition by Saxby; but the Judge ruled it admissible, and it was read. To the ruling of the Judge the counsel of Saxby excepted. A recovery was had in favor of the defendant in error, and the 'cause came into, this Court by a writ of error, based on the exception, taken.
    
      
      Noggle, for plaintiff in error,
    contended that the deposition of a party-not "served with process and not appearing in the action, could -not be 'received as evidence, nor the party himself examined as a witness, under tlVe provision's of 'the "Statute unless 'he had been served with 'process; unless Ms co-party' in the action should have-been notified that he also was to be-examined on the trial; and to this point was cited 4 English Common :L¡aw Rep., 48; 19 Wendell’s Rep., 353; 3 Scammon’s Rep-,, 463; 1 Gillman’s Rep., 3'58-?60'; 1 Gréénleaf’s Evidence, 421, § 353.
    
      Keep, for def’t in-error,
    contended 4hat»the-examination of Curtiss was independent of the Statute-of Wisconsin, dnd'was'therefore admissible; and that under the Statute the examination was admissible as taken. He also claimed 'that no notice was required, or necessary to have been ■ given to Saxby of the examination of Curtiss.
   By the Court.

Wuiton., J.1

The-error assigned in this ease is, -that the Circuit - Judge before whom the cause was tried, permitted the deposition of Curtiss, one of the plaintiffs.in error, to be read in evidence to the Jury. It appears that Neal sued Saxby and Curtiss in .the late District Court of the Territory. The-.summons was served on Saxby alone, who appeared and pleaded to the action. Curtiss did not appear.' A -trial was had' in the Circuit Court for Rock county, at which the defendant offered to read the deposition of Curtiss, taken in pursuance of a Statute of the Territory, (Laws of 1841, page 26.) By the Statute referred to, either party might give notice to the adverse party, that he wished to have him sworn as -witness in the cause; and-if the party notified did not appear and testify, or did not take and produce his deposition, (as in certain cases provided for by the Statute, he might do), then the party giving the notice might himself be sworn as a witness.

The bill of -exceptions shows that Saxby, by his attar* ney, objected to the introduction of the deposition of Cur-tiss, above alluded to, on various grounds, but the objection was overruled, and the deposition was read in evidence to the Jury.

That the ruling of the Court in permitting khe deposition to go to the Jury as evidence, 'whto objected to by Saxby, was erroneous, there can be no doubt. It is not necessary to decide whether the defendant in error should ha!ve been permitted to testify, upon the failure of Saxby to .produce the deposition of Curtiss, had he offered himself as a witness; but it is clear that as Saxby alone was served with the process, and alone appeared to defend the suit, the deposition should not have been read to the Jury if -he objected.

The plaintiff should have called upon the attorney who defended the -suit, to produce Curtiss, or his deposition, pursuant to the notice which had been served; and upon the failure of Curtiss to appear, or to produce his deposition, taken in conformity with the Statute, should have offered himself as a witness. That would have brought before the Court the question, whether, under the circumstances of the case, Curtiss was properly a party to whom, notice to testify could be given, under the Statute.

.Judgment reversed.  