¶1I concur in the judgment of reversal, on the ground that the complaint of plaintiff should have been stricken out, and the action dismissed on defendant’s motion to dismiss the action.
¶2The defendant, after issue joined, gave notice to plaintiff’s attorney of the taking of the deposition of plaintiff on the 15th of February, 1888, at a place and time stated in the notice. Along with this notice was served an affidavit that Jennie R. Pool was the plaintiff in the action. Plaintiff was duly subpoenaed to appear at the time and place mentioned above. The plaintiff refused to appear at such time and place to give her deposition. On these facts the defendant, on the 15th of February, 1888, the day on which the action was tried, moved the court below to dismiss the action, which motion was denied, and defendant excepted.
¶3I am of opinion that the defendant had the undoubted right to have the complaint of plaintiff stricken out, under section 1991 of the Code of Civil Procedure. In this case, a party to an action willfully refused to obey a subpoena, or to be sworn as a witness. In either case, defendant was entitled to have the complaint of such party stricken out.
¶4It makes no difference that plaintiff’s motion was in form to dismiss the action instead of to strike out the complaint. Striking out the complaint is substantially dismissing the action. The motion may well be to dismiss the action or to strike out the complaint.
¶5I will add further, that there was manifest error com*374mitted by the court at the trial in excluding from the jury the deed of assignment of January 8,1887, executed by Pool to Clifford, with evidence of its acknowledgment and record.
¶6There is no defect' or insufficiency in the description in the deed. This description is general, but it is aided in that regard by the schedule, which was erroneously excluded by the court, as was the bond executed by Clifford as assignee.