#### TOMLINSON CHAIR MANUFACTURING CO. v. C. M. TOWNSEND.

(Filed 19 October, 1910.)

1. Evidence — Depositions—Objections Waived.

The objections to the reading of the depositions of a witness under Rev., 1648, upon the ground that the subpoena, though duly issued, was returned “not to be found” is waived if not taken before the beginning of the trial.

2. Evidence, Immaterial — Depositions — Objections — Harmless Error.

Evidence merely immaterial in a deposition is harmless. A new trial will not be granted therein unless for prejudicial error.

3. Evidence — Depositions—Witnesses—Subpoena—Interpretation of Statutes.

By reasonable construction, Revisal, 1645 (9), means that where the deposition has been regularly taken, and where the witness is more than seventy-five miles from the place of trial without the consent of the party, and the presence of the witness cannot be procured, the deposition may be read if a subpoena has been duly issued — not necessarily served.

Appeal by defendant from W. B. Allen, J., at tbe May Term,, 1910, of RobesoN.

The facts are sufficiently stated in tbe opinion.

McIntyre, Lawrence & Proctor for plaintiff.

McNeill & McNeill for defendant.

Clark, C. J.

Tbe deposition of T. ~W. Andrews was regularly taken,' tbe witness being duly subpoenaed, notice served on tbe opposite party and full opportunity for botb sides to be present. During tbe, trial after much evidence bad been introduced, tbe defendant for tbe first time objected to tbe deposition when offered in evidence because it did not appear that the witness bad been “summoned as required by Revisal, 1645 (9), be being witbin tbe State and more than 75 miles from Lumber-ton” (tbe place of trial). Tbe subpoena bad been duly issued to tbe county where tbe witness resided and was returned “not to be found.”

*245Tbe objection was waived by not having been taken before tbe beginning of tbe trial (Bevisal, 1648). It would manifestly be tbe greatest injustice to permit a party to. go into a trial relying upon a deposition as a part of bis evidence and then deprive him of it by an objection which if made before tbe trial might have been cured by other evidence or by procuring a continuance.

Besides, if it bad been error to admit tbe deposition, it was harmless error in this case because tbe testimony contained in tbe deposition was immaterial. A new trial will not be granted for an error unless prejudicial. Freeman v. Brown, 151 N. C., 113.

Besides, we are disposed to think that tbe words “duly summoned” as used in Eevisal, 1645 (9), means “subpoena duly issued.” That subsection reads, “If tbe witness has been duly summoned, and at tbe time of tbe trial is out of tbe State or is more than 75 miles, by tbe usual public mode of travel, from tbe place where tbe court is sitting, without procurement or consent of tbe party offering tbe deposition,” it may be read. Tbe statute, if strictly construed, would prevent any deposition being read if tbe witness lived out of tbe State, or was absent from it at tbe time tbe subpoena was issued. It must be given a reasonable construction to effectuate its purpose. Giving it such construction, it means that where tbe deposition has been regularly taken, and where tbe witness is more than 75 miles from tbe place of trial, without tbe consent of tbe party, and tbe presence of the witness cannot be procured, tbe deposition may be read if a subpoena has been duly issued.

Bead in connection with tbe context “duly summoned” (wbieb is a word not applicable to a witness) means, and must mean, “subpoena duly issued,” i. e., that due effort has been made to secure tbe presence of tbe witness. It cannot be tbe purpose of tbe statute to deprive a party of tbe benefit of a deposition, regularly taken, with due notice and opportunity to both sides to be present, because tbe witness cannot be found at tbe time of tbe trial. Indeed, tbe deposition is allowed to be used only because of tbe expense, or impossibility, of having tbe witness present at tbe trial. If tbe witness is found and served with tbe sub*246poena, it would be Ms duty to attend tbe trial. Tbe plaintiff having done all that could be done to obtain tbe presence of tbe witness at tbe trial, by issuing subpoena to tbe county where be resided, and tbe subpoena having not been served by reason of bis absence, no objection having been made before tbe trial on that ground, it would seem that tbe deposition was properly admitted.

No error.