By the Court Suit on promissory notes. A commission to take depositions was issued to John Hansey, Jr., Warren Ballore, and George W. Camp, which was issued out of and under the seal of the District Court of Olmsted County, by virtue of an order of Moses W. Pay, acting as Court Commissioner. Yarious objections were taken'to. the reading of these depositions on the part of the defence, only one of which it is necessary to notice.
Buie twelve, of the rules of the District Court, provides that “ should any or either of the commissioners fail to attend at the time and place for taking testimony, after being notified thereof, any one or more commissioners named in the commission may proceed to execute the same.”
This rule does not appear to have been complied with in taking' these depositions. The depositions were taken by George W. Camp, one of the commissioners named in the commission. In the certificate of this commissioner returned with the commission, it does not appear that the other commissioners were present, nor that they were ever notified of the time and place of taking the depositions. This defect is fatal to the depositions. Where more than one commissioner is named, each party has a right to have all present, and if not all present, it must at least appear, that they have had the opportunity of being present, by a proper notification of the taking of the depositions. This is such a defect of substance as cannot be disregarded, and the depositions should not have been received by the court below. The judgment below is reversed, and a new trial granted.