The objections urged to the answer cannot be considered in this court for the first time, the case having been tried as if the answer was sufficient. (Schluter v. Harvey , 65 Cal. 159; Blasingame v. Home Ins. Co ., 75 Cal. 637; People v. Reis , 76 Cal. 272; Smith v. Penny , 44 Cal. 161; Scott v. Sierra Lumber Co ., 67 Cal. 75; Yik Hon v. Spring Valley Water Works , 65 Cal. 620; McKay v. Riley , 65 Cal. 624; Crowley v. City R. R. Co ., 60 Cal. 630; Cave v. Crafts , 53 Cal. 141; Wedel v. Herman , 59 Cal. 507; Erkins v. Ayer , 58 Cal. 310; Riser v. Walton , 78 Cal. 490.) The testimony was properly taken at the time of the continuance. ( Code Civ. Proc., sec. 596.) The declarations of Serpa after the sale were admissible, because it appears that there was a fraudulent conspiracy, and that appellant was but the tool of Serpa, and his declarations were part of the res gestae of the conspiracy. ( Code Civ. Proc., sec. 1850; Davis v. Drew , 58 Cal. 158; People v. Brotherton , 47 Cal. 389, 400.)

         JUDGES: McFarland, J. Sharpstein, J., and Fox, J., concurred.

         OPINION

          McFARLAND, Judge

         This is an action to recover certain personal property (or its value), alleged to have been purchased by plaintiff from one Joaquin S. Serpa. Maria L. Serpa, former wife of said Joaquin, had obtained a divorce from the latter, and a judgment for $ 290, as costs, attorney's fees, etc. On this judgment an execution had issued, and the original defendant, Ross (now deceased), as sheriff, had, under said execution, levied on said personal property as the property of said Joaquin, when this action was commenced by plaintiff, and the property replevied from the sheriff. Defendant averred that the property was the property of said Joaquin, and that the attempted sale from Joaquin to plaintiff was fraudulent, and for the purpose of hindering and defrauding said Maria, etc. The verdict and judgment were for defendant, and plaintiff appeals from the judgment, and from an order denying a new trial. In the mean time Ross died, and his administrator was substituted as defendant.

         The respondent was allowed, over the objections of appellant, to prove by three different witnesses that when Joaquin Serpa was married to his wife Maria he had a loathsome private disease; that he married her for the purpose of curing himself by transmitting the disease to her; that such was the result of the marriage; and also that during the marriage he cursed, kicked, and struck his wife. It is quite evident that the allowance of this testimony was error. It had no bearing on the question whether the alleged sale from Joaquin to plaintiff was valid, and it clearly prejudiced plaintiff's case by inflaming the minds of the jury against his asserted grantor. For this reason a new trial must be granted.

         There are one or two other questions to be noticed. Appellant contends that the answer does not contain a sufficient statement of the facts which constitute the fraud and the hindering the creditor, and particularly that it does not state that the property in question was the only property of Joaquin out of which the execution might have been satisfied. But no question of that kind was raised in the court below; and both parties introduced evidence, without objection, on the issue of fraud, and as to the point whether Joaquin had other property. Under these circumstances, we would not reverse the judgment for this objection to the answer raised here for the first time.          Some declarations of Joaquin, made after the sale, were improperly admitted.

         The testimony of the witnesses M. V. Silva and Frank Martin was improperly admitted. The case had been set for trial for March 23d; but on March 21st the court, at plaintiff's instance, made another order setting it for April 6th. On March 23d the defendant came into court with the witnesses Silva and Martin, and insisted that the trial should proceed, and that if it should be continued the testimony of the said witnesses should be taken in the form of depositions, because the real defendant was poor and could not get the witnesses there again. Thereupon the court set aside the order resetting the trial for April 6th, and ordered that the case be continued until April 6th, and that, as a condition of the continuance, the testimony of said two witnesses "be taken at this time by and before the court, in the form of a deposition, by questions and answers, and that the evidence be taken by the short-hand reporter." To all of this plaintiff objected. The testimony of the two witnesses was then taken by the short-hand reporter, but was not read over to the witnesses, or corrected or signed by them. On the trial of the case, which was before a jury, a transcript of this testimony, or what purported to be such a transcript, but not certified by the reporter or by any other person, was offered in evidence, and admitted over plaintiff's objections that it had not been read to the witnesses, nor subscribed by them, nor certified by the officer taking the depositions, as required by the code, nor certified by the reporter as a correct transcript of his notes. There no doubt can be a valid condition to a continuance that the testimony of witnesses in attendance shall be taken; but this must be done in the [23 P. 1038] manner prescribed by the code. And the code ( Code Civ. Proc., sec. 596) provides that the testimony must be taken "by deposition before a judge or clerk of the court in which the case is pending or before such notary public as the court may indicate." In the case at bar the transcript admitted in evidence lacked the essential elements of a "deposition" as defined by the code. It was not certified or authenticated in any way whatever, and the witnesses had no opportunity to correct it. The jury before whom the case was afterward tried did not see the witnesses, and could have no assurance that the document presented contained a true statement of their testimony; and we can see no tenable ground upon which the document could have been admitted. The testimony of these witnesses was not taken as part of the trial, which was not commenced until April 6th, and was had before a jury, which was not impaneled until the latter date.

         Judgment and order reversed, and cause remanded for a new trial.