Myers v. Casey & Kelly

Baldwin, J. delivered the opinion of the Court—Cope, J. concurring. 1. We cannot consider the questions on the sufficiency of the evidence to justify the verdict, for the reason that although a motion for a new trial was made by the Appellants, it does not appear to have been acted on. We can, therefore, only consider, at most, the questions of law arising on the trial, or found in the record. 2. It is assigned for error, that the Court erred in refusing to reject certain depositions. The ground of refusal was, that by a rule of the Sixth District Court, written notice for three days [544] is required of exceptions to depositions, when the depositions are returned and filed with the Clerk three days before the trial. The Appellants contend that this rule did not apply, for two reasons: 1. That the second trial was had the next day after the first trial, in which the jury failed to agree; so that he had no time to give the required notice. 2. That the objectionable matter appeared upon the face of the depositions, in which case the rule by its own terms fails to apply. But even if it be competent for a party to object on the second trial to the reading of a deposition, which he has suffered his adversary to read on the first, without objection, as seems to be the case here, yet he had ample opportunity to give his notice before the first trial, and was in default for not having done so; and, second, that the whole depositions wore not liable to tho exception of being hearsay, as now claimed; and, therefore, this was no reason for rejecting them; but this cause could go only to the rejection of the particular matter thus obnoxious to this exception, which should have been taken at the heariiig. Besides, the meaning of tho rule is not that the objectionable matter must appear upon the face of the depositions, in order to be within the exception, but that the objection must appear upon the face of the depositions. Judgment affirmed.