¶1We think that the learned circuit judge erred in refusing to allow the plaintiff to show, if he could, that the reason assigned for taking the depositions did not exist at the time of the trial. The statute provides that “no deposition shall be used, if it shall appear that the reason for taking it no longer exists.” R. S., ch. 137, sec. 19. Yery clearly it is competent for the adverse party to prove that such reason does not exist; and if he does so, the deposition cannot be used, unless the party at whose instance it was taken, and who produces the deposition, shall show that some other cause for taking it then exists. Morgan v. Halverson, 9 Wis., 271.
¶2It is said in argument, that the ruling of the circuit judge was made under the provisions of sec. 2, ch. 267, Laws of 1864, which reads as follows: “ All objections to the validity of any deposition, or its admissibility in evidence, shall be made before entering on the trial, not afterwards; but any deposition after the commencement of the trial may be suppressed, if any matter which is not disclosed in the deposition appears, which is sufficient to authorize said suppression.”
¶3Surely it was not disclosed in the depositions of the Baileys’ that at the time of the trial they were in Grant county and within twenty-five miles of the place of trial; and the case does not come within the requirements of that statute in regard to the time when objections to depositions must be taken. The provisions of section 2, above quoted, evidently apply only to cases where the grounds of objection to the validity of the deposition appear on the face of the deposition itself, and not to a case like the one under consideration.
¶4We think there must be a new trial because of the error above mentioned, and we deem it unnecessary to decide the other questions raised and discussed by counsel.
¶5By the Court. — Judgment reversed, and a venire de novo awarded.