Haynes v. Hayward

Goodenow, J. This action was tried at the January term, 1856, and the deposition of John K. Gilmore was then offered by the plaintiff, and objected to by the defendants. The defendants afterwards waived their objections, and the deposition was used 'at the trial. At this term, April, 1856, the plaintiff offered thé same deposition, which was again objected to by the defendants, as having been taken to be used in another action. The plaintiff’s attorney, H. P. Haynes, Esq., then testified that said deposition was taken to be used in an action between these parties returnable at the October term of the S. J. Court, 1854, which action was not entered. Another action, for the same cause, was commenced for January term, 1855. Subsequently to said October term, and before said January term, said Hayward came to him, and said he had agreed with the plaintiff Haynes, that Gilmore’s deposition might be used by either party, as had been before agreed between them in reference to said October term; that he considered the deposition favorable to him and wished to have the agreement in writing. Such an agreement was written. He thought Hayward took it; it was not in the witness’ possession; that he had not seen it since it was written. It was signed by witness as attorney for plaintiff, and by Hayward for defendants. As it appears from the report of the case, the defendants did not limit the waiver of their objections to the deposition, to the trial at the January term; we are of opinion that the deposition was properly admitted at the trial at the April term, 1856. It does not appear that the defendants were surprised by its admission, or that they moved for a continuance [495] in consequence of it. The scale bill annexed, verified by the oath of the defendant, taken in connection with the written contract between the parties, was also properly admitted. We are of opinion that the Judge committed no error in refusing to order a nonsuit; or in rejecting the testimony of the defendants as to the facts, which the report states they offered to prove in defence. The rulings of the presiding Judge are sustained. A default is to be entered and judgment for such damages as he shall award. Tenney, C. J., and Hathaway, Appleton, and May, J. J., concurred.