Opinion
Decided May 29, 1933.
Evidence — Deposition of nonresident plaintiff, admissible — Section 11525, General Code — Party, testifying for himself, subject to all limitations and privileges of witness — Nonresidence established by motions to secure costs and discharge attachment.
1. Deposition of nonresident plaintiff may be used in action (Section 11525, General Code).
2. Party acting in dual capacity of witness and party is subject to all limitations and privileges of witness when testifying for himself.
3. Defendant's motion for security for costs and motion to discharge attachment, which stated that plaintiff was nonresident of county and state, held sufficient showing that plaintiff was nonresident, warranting use of plaintiff's deposition in action (Section 11525, General Code).
ERROR: Court of Appeals for Hamilton county.
Mr. Richard L. Brummer, for plaintiff in error.
Mr. Frank E. O'Gallagher, for defendant in error.
This is a proceeding in error from the court of common pleas of Hamilton county to reverse a judgment of that court affirming a judgment of the municipal court of Cincinnati in favor of the plaintiff in such municipal court.
The sole question presented is whether or not the deposition of a nonresident plaintiff may be used.
It is contended that a party plaintiff is not entitled to take advantage of the provision of Section 11525, General Code, which reads: "The deposition of a witness may be used only when it is made to appear to the satisfaction of the court that he does not reside in, or is absent from, the county where the action or proceeding is pending, or, by change of venue, is sent for trial; or that he is dead, or, from age, infirmity, or imprisonment, is unable to attend court; or that the testimony is required upon a motion, or where the oral examination of the witness is not required."
We think it is plain that at any time a party may act in the dual capacity of witness and party, and that when testifying for himself he is subject to all limitations and privileges of a witness.
It is contended that there was no showing that the plaintiff was a nonresident or could not be present. Reference to the original papers filed by the plaintiff in error shows first a motion by the plaintiff in error for security for costs, in which it is stated:
"1. The plaintiff was a nonresident of this county at the beginning of this action.
"2. That plaintiff still is a nonresident of this county."
And, again, in the motion to discharge an attachment the plaintiff in error states: "(1) Both plaintiff and defendant are nonresidents of the State of Ohio, and plaintiff cannot come into Ohio and maintain an action in attachment for necessaries, the debt being incurred in a foreign state."
The deposition was properly admitted, and the judgment of the court of common pleas is affirmed.
Judgment affirmed.
HAMILTON, P.J., and CUSHING, J., concur.