Decided February 20, 1964.
Costs — Defendant's depositions taken to formulate defense — Taxed as costs, although not used, when.
Upon dismissal of an action for failure of the plaintiff to file an amended petition, defendant's costs of taking depositions which are taken in good faith and are necessary to formulate a defense, although not used, are properly taxable as costs in the case.
APPEAL: Court of Appeals for Cuyahoga County.
Mr. Jay B. White, for appellee.
Mr. Howard H. Perelman, for appellant.
This appeal comes to this court on questions of law from the Cleveland Municipal Court on the overruling of defendant's motion to tax costs of depositions. The subject costs were incurred by the defendant in the taking of depositions, pursuant to Section 2319.06, Revised Code, and the issuance of subpoenas duces tecum. These subpoenas were directed to plaintiff to produce certain records that were needed to secure information to enable the defendant to prepare its defense. During this time four amended petitions were filed and ordered stricken by the court. Upon failure of plaintiff to file a fifth amended petition, the court dismissed the action which negated both the purpose of taking further depositions and the filing and use of same in the case.
The depositions were not taken de bene esse (that is, no anticipation of future need) but were taken to formulate a defense. The effect of the court's ruling is to saddle the defendant with these substantial costs, leaving the plaintiff free to refile her cause. We find that the depositions were taken in good faith and were a necessary adjunct to the preparation of defendant's case. See Farmers Union Fidelity Ins. Co. v. Farmers Union Co-operative Ins. Co., 147 Neb. 1093, 26 N.W.2d 122.
The order is, therefore, reversed as contrary to law, and the cause remanded to the Cleveland Municipal Court with instructions to grant defendant's motion to tax costs of depositions as costs in the case.
SKEEL, C. J., SILBERT and ARTL, JJ., concur.