In re Rauh (65 Ohio St. 128, 1901)

Davis, J.

The right to^ take depositions should be carefully distinguished from the right to use them. The one depends upon the competency of the evidence, or upon the existence of one or more of the cases mentioned in Sec. 5265 of the Revised Statutes; the other is a precautionary privilege granted by Sec. 5266 of the Revised Statutes. . The statutes provide that the testimony of witnesses may be taken by deposition (Revised Statutes, See. 5261), and presumably this applies to all witnesses) whether parties to the action or not, subject, however, to the limitation that a party may be examined as if under cross-examination, at the instance of the adverse party. (Revised Statutes, Sec. 5243.) An adverse party is, therefore, not exempt from testifying in a deposition; but whether the deposition of such witness, or of any other witness may be used or not must depend upon the judgment of the court when the deposition is offered as evidence. Whether or not the substance of the deposition is incompetent, is* to be left to the subsequent determination of the court; as is also the question whether a command to produce books, papers or other thing under the control of the witness relates to such books, writings or other thing as he may be compelled to pro