Smart v. Cain

I concur in the first syllabus and in that portion of the opinion holding that a discovery deposition may be admitted as evidence in the trial of a case when the attendance of the witness cannot be procured. 12 O.S.1961, § 447.

However, I find no evidence in the record that the defendant cannot procure the attendance of the witness whose deposition is sought to be used. The “witness” is the defendant herself! The defendant-witness has elected to voluntarily be absent from the trial after a pre-trial hearing and legal notice of the trial setting. In my view, the purpose of the deposition…