Matthews v. J. H. Luers Drug Co.

Ladd, J. 1 It will be observed that the alleged agreement between the parties did not contemplate the sharing-of losses, and for this reason the action was not based on a partnership transaction. Ruddick v. Otis, 33 Iowa, 402. If it be conceded that the testimony of the plaintiff disclosed such a relation, no objection whatever was interposed to the trial of the issues in the law forum. The relief sought might be awarded in either, and the defendant, by failing to ask for the correction of the error, if any, in the proceedings, waived it. Code, section 3437. Knott v. Tincher, 39 Iowa, 628; Green v. Marble, [233] 37 Iowa, 95; Weaver v. Kintzley, 58 Iowa, 192. True, the defendant moved the court to dismiss the action when plaintiff had rested, but section 3432 of the Code expressly prohibits the dismissal or abatement of a suit because of an error in the kind of proceedings. The relief sought in a motion to dismiss is entirely different from, and antagonistic to, a request to transfer, and does not include the latter, as suggested by the appellant. No hint of a preference to have the issues determined by the judge, rather than the jury, was given until after the verdict, and then' it -was too late. 2 II. The evidence of one Tinlayson was taken by deposition, and in answer to interrogatories he gave the contents of a written contract and certain letters. No written exceptions were filed, and the appellant insists that the objection interposed at the trial, of incompetencv, ought to have been sustained. Secondary evidence is not excluded because incompetent, as it is not.so, but for that it is not the best of which the case, in its nature, is susceptible. Homestead Co. v. Duncombe, 51 Iowa, 525; Stove Co. v. Shedd, 82 Iowa, 544; Buettner v. Steinbrecher, 91 Iowa, 592. In Hunt v. Higman, 70 Iowa, 406, it was simply held that the court will be assumed, in reaching its conclusion, to have rejected improper evidence, to which timely objection has been interposed, though no ruling thereon appears to have been made. No point seems to have been made as to the sufficiency of the objection.' To the sixth cross-interrogatories the witness responded in part, “I supposed that Luers & Oo. consisted of Luers and Matthews.” the objection made at the time of the trial, that this was “a purely voluntary statement, and not responsive,” was rightly disregarded as not permissible under section 4712 of the Code, requiring all exceptions to depositions, “other than for ineompetqncy, irrelevancy or immateriality,” to be filed with the clerk before trial. [234] 3 III. While the cross-examination of the physician -called by the defendant is not to be commended, and counsel might- very properly have been required to desist, it could have worked no prejudice. The range of cross-examination concerning the relations of a witness to a party is largely within tlie discretion of the court, and this was not abused in permitting the inquiry of Begin er. — -Affirmed. Granger, C. J., not sitting.