On Motion for Rehearing.
The first assignment of error objected to the use bf the depositions of Dr. Heaney because,“on the day this case was called for trial, at the present term of this court, plaintiffs announced ready on the assurance by defendants that said Dr. Harry G-. Heaney would be- available as a witness, should plaintiffs desire to use him; that said witness was then and there under process caused to be issued and served by plaintiffs; that said witness would be available, plaintiffs announced ready for trial.” Immediately following that part of the assignment is an objection, not to the depositions, but to certain statements made by Edward R. Kleberg. Then, returning to the depositions, appellants objected to them because the witness was in effect present in court. If the last statement be true, •then the first objection falls to the ground, because appellees had promised to have the witness available, and he was in effect in court. If he was not available, it follows there could be no objection because the depositions were not used while he was in court; and, if he was in court, then he could have been used by appellants. In the proposition under the assignment, it is admitted that the witness was present and available, that he was under process issued by appellants, and that they had taken the depositions to which they urged objections. It is not claimed in the assignment or proposition that the use of the depositions or a failure to cross-examine the witness had in any way injured appellants, except that it is stated generally that the error was material and affected the jury. How was it material, and how did it affect the jury?
[8] It seems to be the contention that if a party takes a deposition which is used in evidence-by his antagonist, the fact of such use authorizes the party who took the deposition to call the witness in person in order to cross-examine him. In other words, the use of the deposition not only makes the testimony that of the party offering it, but also gives the other party the right to place the witness on the stand for purposes of cross-examination. No authority has been presented for this proposition, nor do we believe it can be produced. The depositions of a witness cannot be blended with or merged into his testimony on the stand in person, and the taking of his depositions and their use by the opposite party from the one who took them does not change or alter a single rule as to the examination of the witness in person. All that is held in the cited cases is that when thé opposite party introduces depositions not taken by him they become his evidence, and none has held that when so used the witness can be called for cross-examination as though he had testified in person for the opposite party. It would indeed be a novel practice.
There was no objection to the form of taking the depositions, the only objection being that the court did not make it a condition to their use that appellants should then be permitted to call the witness to the stand and cross-examine him on his answers to the interrogatories propounded by them. Of course, the cited cases of Railway v. Ritter, 16 Tex. Civ. App. 482, 41 S. W. 753, Railway v. McKenzie, 41 S. W. 831, and W. U. Tel. Co. v. Lovely, 29 Tex. Civ. App. 584, 69 S. W. 128, hold nothing even tending in the least to sustain any such rule.
[9] Whatever may have been held by the Supreme Court at one time as to using the depositions of a witness when he is present in court, as opposed to such use, it is now well established in later opinions, both by the Supreme Court and Courts of Civil Appeals, that it is within the discretion of the trial judge to permit them to be used. Schmick v. Noel, 64 Tex. 406; Hittson v. Bank (Sup.) 14 S. W. 780; Schmick v. Noel, 72 Tex. 1, 8 S. W. 83; O’Connor v. Andrews, 81 Tex. 28, 16 S. W. 628; Railway v. Renken, 15 Tex. Civ. App. 229, 38 S. W. 829; Railway v. McKenzie, 41 S. W. 831; Railway v. Burnett, 42 S. W. 315.
There was not, as stated in the original opinion, any offer to place Dr. Heaney upon the stand, nor does the record show what questions were to be propounded on the cross-examination, nor what the probable answers nor probable effect might have been. The cross-examination, had it been permitted, may not have elicited a single fact favorable to appellants, or which would have tended to have shaken the testimony of the witness embraced in the depositions. The depositions indicate a high order of intelligence upon *441the part of the physician, and he does not seem to belong to a class whose evidence might be discounted or broken down by a cross-examination. They permitted appellants to call Dr. Heariey to the witness stand if they, so desired.
In connection with the affidavits of the witnesses who proved up the will in the county court, it may be stated that if the affidavits should not have- been admitted, every fact contained in the affidavits was testified to by the affiants in the district court.
The motion for a rehearing is overruled.