Hobby v. Wisconsin Bank of Madison

[169] By the Court, DlXON, O. J. The deposition of the witness Marian L. Hobby should have been received. It was taken pursuant to section 75, chap. 120, E. S., and used without exception on the trial before the justice. The return of the justice shows this, and the objection that there was no certificate in the form prescribed for other depositions, if that was necessary, was waived. The statute is in these words: “The justice before whom any civil cause is pending may, on any day on which a trial may be had, after an application has been made for an adjournment and before making an order for an adjournment, on the application of either party showing any cause provided by law therefor, proceed to take the deposition of any witness then in attendance before the justice, and no prior notice shall be required.” Section seventy-three of the same chapter declares that “In cases of appeal from the judgment of a justice, the depositions used before him on the trial may be used in the appellate court, and no exception for informality or irregularity shall be noticed in such court, which was not taken in writing before the trial in the justice’s court.” E. B. Hobby, the husband of the plaintiff, was a competent witness to prove the contract made by him as the agent of his wife, the receipt or payment of money, or other acts done by him within the scope of his agency. Birdsall v. Dunn, 16 Wis., 235. Judgment reversed, and a new trial awarded.