
    Nelson Cronkhite v. Hiram R. Mills and Daniel Follensbee.
    
      Depositions — Settlement of interrogatories — Identity of commissioner.
    
    1. A commissioner has no authority to settle interrogatories to he annexed to a commission'to take depositions, before the hour appointed in the notice of such proposed settlement.
    2. The execution and return of the commission to take testimony directed to James I. McKenzie, by James S. McKenzie, is not necessarily a sufficient ground for the rejection of the depositions, the question being one of identity.
    Error to St. Olair. (Canfield, J.)
    Argued June 28, 1889.
    Decided October 18, 1889.
    Beplevin. Defendants bring error.
    Eeversed.
    The facts, and points of counsel passed upon by the Court, are stated in the opinion.
    
      James L. Coe (Frank Whipple, of counsel), for appellants.
    
      Avery Brothers (W. L. Jenks, of counsel), for plaintiff.
   Champlin, J.

In this case depositions were taken in California under a commission issued out of the circuit court for the county of St. Clair. The plaintiff offered in evidence the notice and application for an order for the commission to issue, together with proof of service; also the affidavit upon which the application was based; also the notice of settlement of interrogatories, with proof of service, together with the interrogatories to be proposed, and the order allowing the commission to issue, together with the return of the commission; and offered to read the depositions in evidence.

The defendants’ attorney objected to the depositions being read in evidence, for the reason that the notice served on him of the time and place of settling the interrogatories was for 2 o’clock p. M. of the twelfth day of September, 1887, and that he attended at that time, and was informed by the commissioner that the interrogatories had been settled the morning previous; and he requested leave, and was permitted, to file his affilavit of the fact that he appeared in obedience to the notice served on him, and also of the fact that he had received no notice of the application to be made at 9 o’clock A. ir. for a commission.

The notice served upon him on settlement of interrogatories was attached to the affidavit, and is as follows:

“ Filed April 6, 1888.
The Circuit Court for the County of St. Clair.
“Nelson Oronkhite
vs.
Hiram R. Mills and
Daniel Follensbee.
“ Sir: You will please take notice that on the twelfth day of September, A. 1). 1887, at the hour of two o’clock in the afternoon, application will be made to Patrick H. Crimmins, a circuit court commissioner of said county of St. Clair, for the settlement of interrogatories to be annexed to a commission to be issued in the above-entitled cause to James I. McKenzie, a notary public of Los Angeles, in the state of California, for the taking of the evidence of Nelson Cronkhite, plaintiff, his wife, Mrs. Nelson Oronkhite, and James A. Oronkhite.- At that time we shall propose interrogatories to be addressed to said witnesses for settlement, of which the annexed are true copies.
“Yours, etc.,
“Avert Bros.,
“ Plaintiffs Attorneys.
Dated Aug. 30, 1887.”

The record also shows that such notice was served, as appears from the affidavit of Charles S. Northrup, so that there was no discrepancy in the proof as to-the time stated in the notice for the settlement of interrogatories.

The commissioner had no authority to settle the interrogatories before the hour appointed in the notice, and the court should not have permitted the depositions to have been read in evidence.

Some of the interrogatories were objectionable as calling for hearsay testimony, and others were so framed as to call for incompetent testimony. Special mention is non necessary, as it is to be presumed that such questions will not be proposed in case another commission is applied for.

The commissioner named in the application and in the commission was James I. McKenzie, and the commission was executed and returned by James S. McKenzie. This would not necessarily be a sufficient ground tt> reject the depositions. The question would resolve itself into that of the identity of the person who executed'the commission with the person named in it.

As there must be a new trial for the error stated, the other exceptions will not be passed upon.

Judgment reversed, and a new trial ordered.

The other Justices concurred.  