National Bank of Commerce v. Cleveland

Gill, J. This is a suit on a noté for $2,000, purporting to have been executed by defendants Landes, Crouch, and Cleveland. Landes and Crouch made no defense, but Cleveland pleaded won est factum. On this issue the case was tried by jury resulting in a finding and judgment for plaintiff, and defendant Cleveland appealed. At the trial plaintiff offered to read a portion of the deposition of defendant Landes, which had been theretofore taken by defendant Cleveland. Defendant’s counsel interposed an objection, which the court overruled, stating that plaintiff might read “that portion which pertains to the matter in controversy.”' Defendant further insisted that plaintiff should be required to read the whole of the deposition. The court stated, “that plaintiff might read such portions as they desired, and then defendant could, if he desired, read the balance.” Plaintiff’s counsel then proceeded and read to the jury from said deposition what said Landes testified to in relation to Cleveland signing the note in controversy. The court’s action in this respect is the sole matter of complaint now urged for a reversal of the judgment. It might be successfully contended that the court did not exclude any portion of the deposition, and if so, then the defendant did not have anything to complain of. The' trial judge did inferentially, if • not directly, admit in evidence the entire paper. But we do not care to place our decision on that ground. Admitting that the court excluded a portion of the deposition, and yet, on the state of this record, we are not authorized to reverse the judgment and award a new trial on that account. The abstract does not contain that portion of the deposition which was excluded, and hence we are not informed as to whether or not the portion not read to the jury was material or of any [548] consequence. The trial judge announced his willingness to let in all of the deposition that pertained to the matter in controversy, and in the absence of a contrary showing, we must assume he did so. And if this was done, then no error — at least no reversible error — was committed. Where é, party seeks to reverse a judgment because of the lower court’s action in excluding evidence, that evidence, or at least the tenor and effect thereof, must be disclosed to the appellate tribunal, so that it can be determined whether or not it was material and would have any probable influence at another trial. Ball v. City of Independence, 41 Mo. App. 469; Fields v. Railroad, 80 Mo. 203; Jackson v. Hardin, 83 Mo. 176; Kraxberger v. Roiter, 91 Mo. 404-408; Berthold v. O’Hara, 121 Mo. 89. So, then, admitting the rule announced in Hill v. Sturgeon, 28 Mo. 323, and that defendant was entitled to have the whole deposition read in evidence, yet as there is nothing here to show that any material part thereof was excluded or omitted, the error, if error it was, was harmless and such as does not call for a reversal of the judgment and which, therefore, will be affirmed. All concur.