On Petition for Rehearing.
Howard, J.— Counsel for appellant complain that the bill of exceptions in this case has been excluded by an observance of mere technicalities. We have, however, simply applied the provisions of the statute to the case. A consideration of the dates of the several entries and certificates relating to the bill, in connection with the requirements of the statute en*328acted on the subject, will make it clear that the holding of the court is not merely technical, but in strict accordance with the requirements of the law. It is certainly but reasonable that those who bring appeals to this court should comply with the provisions of the law and the rules of the court in relation thereto. An orderly administration of justice could be satisfied with nothing less.
• Complaint is also made that we did not decide two questions, not dependent for their solution upon the evidence; namely, whether the trial court erred “in ordering the plaintiff to take the deposition of Jack C. Ryan,” and whether the court erred in permitting the attorney for the plaintiff, in his address to the jury, to make certain disparaging references as to instructions prepared by the defendant and given by the court.
The motion to take the deposition of Mr. Ryan was supported by affidavits going to show that he was an attorney at law, residing over the line in the State of Ohio, and that he was in ill health and unable to attend court Counsel for appellant was asked by the court whether he would prefer to take the deposition that afternoon (Saturday), or on the following Monday. Counsel answered that “he did not expect to be present at the taking of the deposition; that it did not make any difference to him whether it was taken that afternoon or the Monday following; that he would not be there anyhow; that the court had no right to order the taking of the deposition, and that it would be void for the reason that the court had no power during the progress of the trial to order the taking of the deposition outside of the State, in a case of this kind.”
The statute (section 426, R. S. 1894; section 422, R. S. 1881), provides that “in all actions the court may order the taking of depositions, whenever deemed *329necessary to determine the rights of the parties, or to expedite the trial of causes; and may, if necessary for that purpose, order a. continuance until next term.”
In the succeeding section it is provided that such deposition may be used “where the witness does not reside in the county, or in a county adjoining the one in which the trial is to be held, or is absent from the State;” or when he is “so aged, infirm, or sick, as not to be able to attend the court;” orwhen he is an“attorney at law, and the trial is to be had in any county in wdiich the deponent does not reside.”
There was ample reason, under the statute, for taking and using the deposition objected to. The record also shows that the appellant has no cause to complain that the deposition was not taken at a time when he could attend by counsel. The right to attend at the taking of the deposition was expressly waived in open court.
As to the remaining error complained of, the improper comments made by plaintiff upon defendant’s instructions, it may be said that the comments made were improper and should have been reproved by the court on objection made by the defendant. Board, etc., v. Arnett, 116 Ind. 438; Scott v. Scott, 124 Ind. 66, 68. We are inclined to think, however, that no harm was done to defendant by the indiscreet words of counsel. The language used did not amount to comments upon the law of the instructions; for it was not said that they contained any erroneous statements of law. The statute (section 543, R. S. 1894; section 534, R. S. 1881), in civil cases, permits the reading to the jury of instructions which have been prepared by the court before argument, and of the discussion of the evidence-in relation to such instructions. No comments, however, should be made upon the law as thus indicated to be given by the court. While, therefore, the lan*330guage complained of, and the refusal of the court to disapprove of it, must be condemned as a reprehensible encroachment upon the exclusive right of the court, in civil cases, to declare the law to the jury, yet we are unable, in this case, to see that the finding of the jury could have been affected by the indiscreet and probably inadvertent conduct of counsel. The instructions given by the court fully and fairly advised’ the jury as to all questions affecting the rights of appellant, and as to whether he1 was1 a person of sound mind and capable of managing his oAvn estate.
Petition overruled.