Section 2717 of theEevised Code, prescribing the steps to be taken before the issuance of the commission, says the affidavit must state that the witness is material. Whether this is an indispensable requisition or not, which we doubt, the affidavit is not found in the transcript, and therefore we cannot determine the question.
Section 2704 of the Eevised Code removes the incompetency of a witness in civil causes because he is a party, or interested in the issue tried, except that in suits or proceedings by or against executors or administrators, neither party shall be allowed to testify against the other, as to any transaction with, or statement by, the testator or intestate, unless called to testify thereto by the opposite party. In this case the guardian was a competent witness for himself.
As the deposition of the defendant was evidently suppressed on account of his supposed incompetency as a witness, it is unnecessary to consider the objections made by the plaintiff to particular interrogatories. We will say, however, that unless the judgment should appear to have been rendered on irrelevant testimony we would not require the same particularity of examination respecting leading and irrelevant questions, when the case is heard before the judge alone, as in the case of jury trials.
The decree is reversed, and the cause remanded.