Section 375 of the Code (1883), which provides for taking the depositions of witnesses out of the state, is as follows: “ The deposition of a witness out of the state shall be taken upon commission issued by the clerk of the court under the seal of the court where the Suit is pending, on the application of either party, upon five days’ previous notice to the other, which notice shall be accompanied by a copy of the interrogatories to be attached to the commission. It shall be issued to a person agreed upon by the parties, or, if they do not agree, to any judge or justice of the peace selected by the officer granting the commission, or to a commissioner appointed by the governor of the state to take affidavits and depositions in other states and. territories, or to a notary public. The adverse party may file and have attached to the commission such cross-interrogatories as he may desire.”
The court erred in overruling the objections made to the deposition, and in allowing the same to be read in evidence on the trial. In this instance it appears that no person was selected, either by the parties or the officer, and the commission issued so that it might be executed by parties not designated in the section quoted. It does not appear that the said W. A. Acres was an official *407person at all, and, not being a person agreed to by the parties, or selected by the officer, the said objections were-well taken. Such a departure from the letter and spirit of the provisions quoted cannot be sanctioned. It appears that the evidence was material, and must have affected the verdict.
The other questions presented arise chiefly upon the general rules of evidence and the statute upon change of the place of trial on account of prejudice. As they will not necessarily arise upon another trial of the case, it is deemed unnecessary to consider them. The judgment should be reversed.
De Frange and Bising, 00., concur.
For the reasons stated in the foregoing opinion the judgment is reversed.
Per Curiam.jReversed.