Perry v. Whitney

The opinion of the court was delivered by Pierpoint, J. It appears from this case, that on the trial before the auditor, it was insisted that in consequence of the death of the wife of the plaintiff, who was originally a party plaintiff (the action having been brought to recover for her services before [392] marriage), the plaintiff had no right further to prosecute this suit. The auditor decided, and we think correctly, that this question was not one for him to decide. This question should have been brought before the county court, on a proper motion for that purpose. It does not appear from this case, that any notice was taken of this question after the hearing before the auditor, or that the county court in any manner passed upon it. And for that reason, the plaintiff insists that the question is not now before this court. And-we are constrained to say that we do not see how, by any fair construction of the report and exceptions, that question can be raised here. The exceptions show that the only questions passed upon by the county court, were those raised in the report of the auditor, and the only question relating to this matter, that- arises in the report of the auditor, is whether the auditor was right in deciding that he had nothing to do with this question, and of that we think there can be no doubt. The defendant insists that the auditor erred in admitting the plaintiff to testify. This being an action on book, we see no reason why the plaintiff was not a competent witness in this, as in any other action on book. And as the wife of the plaintiff had been a party, and had testified, it was competent for the plaintiff to prove what she had testified to on a former trial (she having died in the mean time), there being nothing in the case to show that there was anything in the nature of the testimony that rendered it improper. It is also insisted by the defendant that the auditor should have excluded the deposition of Nancy Closson. This deposition, having been read on the trial before the justice, without objection, was, we think, clearly admissible before the auditor. The rule is well settled that when a deposition has been read in a trial before a justice without objection, and the case is carried up by appeal, the deposition is admissible before the county court the same as though the deposition had been first read without objection in the county court, and then offered at a subsequent trial. These being the only questions now before this court, and as we find no error in the decision of the court below, on these questions, the judgment of the county court is affirmed.