
    McMillan v. The B. & M. R. R. Co.
    1. Evidence: objection to deposition: practice. A deposition, which has been read without objection upon one trial of an action cannot be objected to on a second trial on the ground of the incompetency of the witness.
    
      -Appeal from Monroe JDistriet Oourt.
    
    Saturday, June 18.
    This action was commenced on the fourth day of September, 1872, to recover of the defendant damages for the alleged killing of George W. McMillan, on the 19th day of October, 1870. The cause was tried to a jury at the May term, 1880, of the Monroe District Court. The trial resulted in a verdict and judgment for the defendant. The plaintiff appeals. The material facts are stated in the opinion.
    
      Henry L. JDashiell, for the appellant.
    
      Perry & Townsend, for the appellee.
   Day, J.

-The defendant offered in evidence at the trial the deposition, taken upon commission, of James Carpenter, w^° was ^ie engineer in charge of the defendant’s train at the time and place that the accident happened. In this deposition the witness details all the circumstances attending the management of the train at the time the injury was inflicted which resulted in the death of George * "W. McMillan. "When this deposition was offered the plaintiff objected to the admission of it in evidence upon the ground that Carpenter was an interested witness, and disqualified by the provisions of section 3639 of the Code from testifying as to what occurred at the time of the accident. The objection ivas overruled and the deposition was read in evidence. This ruling of the court constitutes the only -action which is assigned as error. Although the deposition was taken a long time before, and was read in evidence upon a former trial of the case, no objection was made to it until it was proposed to read it on the second trial. The objection came too late, and for that reason cannot be considered. See Greedy v. McGee, 55 Iowa, 759. In the condition of the record it is neither necessary nor proper that we should consider the competency of the testimony of the witness Carpenter.

Affirmed.  