C. E. Erickson Co. v. Farnum

Rosenberry, J. In granting the motion to suppress the depositions the trial court erred for two reasons: First. It appeared that the depositions, instead of being addressed to Charles H. Lange, were addressed to “Clerk of Justice Court, Rock county, care of Whitehead & Matheson, Attorneys, Janesville, Wis.,” and were entitled “Depositions in case of C. E. Erickson v. C. B. Farnum.” It appeared satisfactorily that upon receipt of the depositions at the office of Whitehead & Matheson the envelope, without breaking of the seal, was taken and delivered to Charles H. Lange, justice of the peace, in the condition in which it was received, and that the said envelope was thereafter opened by the justice. There is no claim that the depositions were in any way tampered with or defective in any other respect than the address. Under the facts in this case we thirtk the [281] depositions were sufficiently addressed and that they should not have been suppressed by reason of the insufficiency of address. Sec. 4091. “All objections to the validity or admissibility of any deposition shall be made before entering on the trial; but any deposition may be suppressed after the trial is begun if any sufficient cause appear which is not disclosed in the deposition and accompanying papers.” Such defect as there was in this case clearly appeared upon the face of the papers, and we think that under the provisions of this statute a motion to suppress on the grounds of misdirection comes too late when it is made after the case is called and a jury struck. Goodland v. Le Clair, 78 Wis. 176, 47 N. W. 268; Wausau B. Co. v. Plumer, 49 Wis. 118, 5 N. W. 53; Jones, Evidence (2d ed.) p. 816. The plaintiff contends that the depositions, together with the order and contract, establish the liability of the defendant as a matter of law. We cannot say that the matters contained in the depositions may not be met by evidence on the part of the defendant. We cannot, therefore, order judgment upon the record. By the Court. — Judgment reversed, and cause remanded for a new trial.