¶1(dissenting).
¶2I concur in the first syllabus and in that portion of the opinion holding that a discovery deposition may be admitted as evidence in the trial of a case when the attendance of the witness cannot be procured. 12 O.S.1961, § 447.
¶3However, I find no evidence in the record that the defendant cannot procure the attendance of the witness whose deposition is sought to be used. The “witness” is the defendant herself! The defendant-witness has elected to voluntarily be absent from the trial after a pre-trial hearing and legal notice of the trial setting. In my view, the purpose of the deposition statutes is to assist a litigant in the trial of a case; the purpose is not to provide the litigant with an election between testifying in person or by deposition. Title 12 O.S.1961, § 433(1) recognizes those instances when the presence of the deponent at the trial cannot be obtained by a litigant through judicial process, such as a subpoena (12 O.S.1961, § 390), and the deposition is therefore admissible. In other words, the inability of the litigant to compel the attendance of the witness is the legal cause for the admission of the deposition.
¶4I do not believe that either legal cause or diligence in failing to procure the attendance of a “witness” is demonstrated by her inability to subpoena herself.
¶5Bowen v. Bowen, 120 Kan. 545, 246 P. 992, cited in the majority opinion, holds that the deposition of an absent witness who could not be served with a subpoena is admissible in the trial of the action. The deponent in this divorce case had testified to intimacies with Mrs. Bowen and then taken the early train out of town on the day of the trial. Bowendoes not stand for the proposition that Mrs. Bowen’s deposition would be admissible; it merely holds that Mr. Bowen may use the deposition of a third party deponent upon a showing of the voluntary absence of this witness to avoid being subpoenaed. The rule in Kansas as in Oklahoma, was, and is, that it must first be shown to the court that the witnesses’ oral testimony cannot be procured upon the trial. Frankhouser v. Neally, 54 Kan. 744, 39 P. 700; General Explosives Co. v. Wilcox, 131 Okl. 190, 268 P. 266 (1928). It is my position that the voluntary absence of a litigant, who resides in the county where the action is being tried, fails to satisfy this basic requirement.
¶6I would hold in this case that (1) a discovery deposition may be used in the trial of an action if it appears to the satisfaction of the court that for some legal cause the attendance of the witness cannot be procured; (2) a resident party to the action may not create “legal cause” by her voluntary absence from the county since her oral testimony may always be procured by her own action and without the necessity of compulsion, as is the case in the use of a subpoena for other witnesses; (3) no *825error was committed in excluding the deposition of the defendant in the circumstances presented here.
¶7I believe further that the present statutes controlling the use of a deposition are fully adequate as an evidentiary rule without injecting fraud or collusion .as added elements in determining the admissibility of a deposition.
¶8I respectfully dissent.
¶9I am authorized to state that IRWIN and LAVENDER, JJ., join in the views expressed herein.