Cayouette v. Emil T. Raddant Brewing Co.

EIeRwiw, J. The appellant assigns the following errors: (1) That the court erred in not granting the motion of the defendant for a new trial on the ground that the verdict was contrary to the evidence: (2) that the court erred in receiving the deposition of one Joseph Oayouette, for the reason [636] that no sufficient notice of the taking of said deposition had been served upon the defendant or his attorney; (3) that the court erred in denying the defendant’s motion to dismiss the action, for the reason that the case was tried upon the theory of a valid contract, and that such contract was not to be executed within one year and was therefore void. The first assignment of error cannot be considered. We cannot review the evidence in this case, since there is nothing in tlie bill of exceptions going to show that any motion for a new trial was made. The sufficiency of the evidence is the only question arising under the first assignment of error; hence this error is not available to defendant. On the assignment of error that the court erred in receiving the deposition there is nothing in the bill of exceptions showing what notice was given. Nor does it appear that any motion was made before entering upon the trial to suppress the deposition or to take advantage of defect in service of notice, if any existed. The objection that sufficient notice was not given could not be raised for the first time when the deposition was offered upon the trial. Sec. 4091, Stats. (1898); University of Notre Dame du Lac v. Shanks, 40 Wis. 352. The appellant further assigns error upon the theory that the contract between plaintiff and defendant was within the statute of frauds and void. This assignment is not available for the reason that, even if it be conceded that the contract was void when made, it was executed to the extent that $265, the amount of money claimed in this action, had been paid under the contract by plaintiff to defendant. Therefore, so far as this case is concerned, it is wholly immaterial whether the contract, while executory, was void under the statute of frauds or not. We find no error in the record; therefore the judgment must be affirmed. By the Court. — The judgment of the court below is affirmed.