Opinion
No. 71-038 (Supreme Court No. 24335)
Decided April 6, 1971.
Action on guaranty contract. Plaintiff, dissatisfied with amount of judgment, appealed.
Reversed
1. DEPOSITIONS — Established — Witness — Unavailability — Rule — Not Admissible. Where plaintiff failed to make any effort to establish the unavailability of the witness whose deposition was offered as entire basis of plaintiff's case, plaintiff failed to meet the requirements of R.C.P. Colo. 26(d)(3) and the deposition should not have been admitted into evidence.
Error to the District Court of Baca County, Honorable Robert Sanderson, Judge.
Schmidt Schmidt, Warren E. Schmidt, for plaintiff in error.
Johnson McLachlan, George McLachlan, for defendants in error Loran R. Schrepel and Ruby G. Schrepel.
No appearance for defendants in error Ralph Edward Smith and William H. Bloskas.
This case was transferred from the Supreme Court pursuant to statute.
J. R. Watkins Company sued Mr. and Mrs. Schrepel (and others, not parties here) on a guaranty contract, and obtained a judgment for $347.03, plus interest and costs.
Watkins Co. was dissatisfied with the amount of the judgment and asserts error in that the judgment should have been for $701.71. The Schrepels assert cross-error on the ground that the trial court erroneously admitted into evidence a deposition offered by plaintiff. Defendant in error is correct, and this determination disposes of the issue raised by plaintiff in error.
[1] Watkins Co. rested its entire case on the deposition of an officer of the company taken in Minnesota two years before trial. It offered the deposition, which the trial court ultimately admitted into evidence. Defendants objected to its admission on the ground that plaintiff had failed to meet the requirements of R.C.P. Colo. 26(d)(3), which provides that the deposition of a witness may be used by any party if the court finds that the witness is unavailable at the time of trial for any of the reasons listed in the rule. Plaintiff failed to make any effort to establish the unavailability of the witness whose testimony comprised the deposition. Therefore the deposition should not have been admitted into evidence under the rule enunciated in Evans v. Century Casualty Co., 159 Colo. 596, 413 P.2d 457, wherein the court said,
"We deal next with the question of the propriety of admitting into evidence the Waite deposition. We hold that its admission was improper because there was no showing that the deponent Waite was unavailable to testify or was more than 100 miles from the place of trial at the time of trial.
"Rule 26(d)(3), R.C.P. Colo. provides in pertinent part that a deposition may be used by any party for any purpose if:
"* * * the court finds: * * * 2, that the witness is absent from the state of Colorado or is at a distance more than 100 miles from the place of trial or hearing, * * *" (Emphasis supplied.)
"In order that a deposition may be admitted into evidence, the party offering the deposition must make a sufficient showing of the unavailability of the deponent at the time of trial. [citing cases]
* * * *
"* * * [T]he burden of proof of unavailability is on the party offering the deposition, and the failure to carry the burden precludes the use of the deposition as evidence."
Since plaintiff offered no evidence other than the deposition there was no evidence properly before the court upon which to base a judgment.
The judgment is reversed and the cause remanded with directions to dismiss the complaint.
JUDGE ENOCH and JUDGE DUFFORD concur.