Conrad Rubber Co. v. Goodyear Tire & Rubber Co. , 15 F.2d 193 ( 1926 )

PER CURIAM.

Section 863 of the Revised Statutes of the United States (Comp. St. § 1472) provides when and under what circumstances depositions may be taken, and section 865, R. S. (section 1474), provides when a deposition may be used on the trial of a cause. It does not appear from this deposition that any of the conditions or circumstances authorizing the taking of deposition existed at the time this deposition was taken or that the conditions named in section 865 existed at the time it was used in support of plaintiff’s motion. If, however, the defendant waived the provision of section 863, R. S., as to the taking of this deposition, and it were conceded that such waiver extends to its use upon the hearing of this motion, it nevertheless appears therefrom that the witness, who is not a party to the suit, but merely an officer of the defendant corporation (Cockley Milling Co. v. Bunn, Admx., 75 Ohio St. 270, 278, 79 N. E. 478, 116 Am. St. Rep. 741, 9 Ann. Cas. 179), did not admit any indebtedness upon the account, or that the goods had been accepted and received by the defendant, or that the account was due.

The judgment of the District Court, sustaining the motion, is reversed, for the reason that the deposition does not sufficiently show that the answer and cross-petition were sham, and for the further reason that the practice of striking out a cross-petition as sham is not sufficiently supported by the Ohio decisions.

Reversed.