
    CORNELIUS vs. PARTAIN.
    [APPEAL CASE EROM JUSTICE’S COURT.]
    1. When objection to deposition must be made. — An objection to a deposition, on account of the want or insufficiency of the notice of the filing of the interrogatories, must he made before the trial is entered upon, (Code, ^ 2328,) and comes too late afterwards.
    Appeal from the Circuit Court of Jefferson.
    Tried before the Hon. Wm. S. Mudd.
    This action was brought by Abner Cornelius, against Mrs. Sarah Partain; and was commenced in a justice’s court, on the 9th June, 1862, and was removed by appeal, by the defendant, to the circuit court. The cause of action, as described in the justice’s summons, was “a claim of damages sustained by destroying plaintiff’s fruit trees, and hauling through his lands, and taking off rails from his land.” The record does not show that any complaint was filed in the circuit court. “When the cause was called for trial,” as the bill of exceptions states, “the plaintiff asked for a continuance, on account of the absence of two witnesses, and stated to the court what he expected to prove by them. The defendant’s counsel declined to make the necessary admission, and the court announced that the cause would be continued. At this announcement, the plaintiff’s counsel remarked to the court, that he should ask leave to retake tbe depositions of certain witnesses, wbicb bad been taken for tbe plaintiff, unless tbe defendant would waive all objection to them. Tbe defendant’s counsel remarked to tbe court, just at tbis time, that, as tbe case was a small one, and tbe costs were accumulating, be would admit wbat tbe absent witnesses would prove, and go to trial. Tbe trial then proceeded. During its progress, tbe plaintiff’s counsel proposed to read the depositions of Joseph Sargeant and Cincinnatti Cornelius, wbicb were tbe depositions spoken of above. Tbe defendant’s counsel objected to tbe reading of said depositions, because, be said, be was then for tbe first time [informed] that any such depositions bad been taken; that it was true tbe plaintiff’s counsel bad, on tbe 27th February, 1864, brought to him tbe following paper, ’ setting out tbe interrogatories propounded to said witnesses, and their depositions, wbicb purported to have been taken on tbe 5th March, 1864; “that be then told plaintiff’s counsel that be could not accept said notice, or cross said interrogatories, as bis client was unwilling to do so, and that be should insist on a strict compliance with tbe law; and that plaintiff’s attorney then gave him notice that be would take said depositions any way. Plaintiff’s attorney then stated, that be went to tbe clerk’s office to file said interrogatories on tbe 27th February, 1864, but found tbe clerk absent from town, and tbe deputy clerk sick, so that said interrogatories could not then be filed ; that said interrogatories were not filed until tbe 4th March; that on tbe same day a commission was issued to A. J. Waldrop, who was tbe clerk of tbe court, to take said depositions ; that tbe depositions were taken by him on tbe next day, and were deposited by him in bis office on Monday, tbe first day of court. It was shown, also, that no other notice was given of tbe taking of said depositions than as above stated; that tbe depositions bad been banded to Mr. Morrow, tbe assistant counsel for tbe defendant, who was examining them when tbe trial was entered upon, but bad only made a partial examination of them. On tbis proof, tbe court refused to permit said depositions to be read, and excluded them from tbe jury ; to wbicb ruling of tbe court tbe plaintiff excepted,” and be now assigns tbe same as error.
    
      Wm. S. EARNEST, for appellant.
   A. J. WALKER, C. J.

The depositions of two witnesses were rejected as evidence when offered on the trial of the cause. The objection was, that the written notice of the filing of the interrogatories, required by section 2320 of the Code, had not been given. Section 2328 of the Code directs, that “all objections to the admissibility of the entire deposition in evidence, must be made before entering-on the trial, and not after; unless the matter is not disclosed in the deposition, and appears after the commencement of the trial.” The objection went to the entire deposition. It was not within the exception allowed by the statute. It therefore could not be made on the trial.—McGill v. Monette, 37 Ala. 49; Thompson v. Rawles, 33 Ala. 29; McArthur v. Carrie, 32 Ala. 75. If it'be admitted that any excuse can be allowed for the failure to make the objection before the trial, the facts disclosed in the record certainly constitute none, which ought to be entertained.

Reversed and remanded.  