¶1(concurring).
¶2My concurrence in the order of reversal herein is limited to appellant’s point No. 3; that is, insufficiency of predicate for introduction of parts of Bill Barbre’s testimony, taken from statement of facts of previous trial. At time of the present trial, Mr. Barbre was temporarily a resident of Colorado; and the record discloses no attempt made to take the deposition of such witness of appellee. Morris v. Davis, Tex.Civ.App., 292 S.W. 574 (writ ref.). See also Carter v. Irvine, Tex.Civ.App., 77 S.W.2d 247, 249, the Waco Court there going on to say: “The Court of Civil Appeals at Austin, in the case of Morris v. Davis, 292 S.W. 574, 575, par. 1, after reviewing the authorities in this state, held that though the witness reside outside the county, or even, as in that case, outside the state, if his whereabouts were known and it was reasonably apparent that his deposition could have been taken, his testimony given at a former trial should not be admitted. The Supreme Court refused a writ of error in that case.”