By the Court,
Eisher, C. J.
On or about the fourth of January, A. D., 1873, several attachments were issued by merchants in the city of Omaha, in the state of Nebraska, against a firm alleged to be composed of the defendant in error, and several others, sometimes known by the name and style of Wright & Co., G. W. Wright & Co., and by several other designations. That by virtue of these several [164] writs of attachment, certain goods, wares and merchandise, in the possession of the said defendant in error, who it was alleged was a member of the firm aforesaid in all its various forms, were attached to satisfy the claims of the attaching creditors by the sheriff of Laramie county. Shortly after the service of the said attachments, and the taking possession by the said sheriff of the said goods, wares and merchandise, the defendant in error, who was plaintiff below, had a writ of replevin issued, and, by virtue thereof, the said goods were returned to him by the sheriff, and on the trial, the defendant in error, who'was plaintiff below, recovered a verdict for the sum of fifteen dollars. The counsel for the plaintiff in error, who was defendant below, filed his motion for a new trial, and assigned the same errors, which are set out in the petition in error; said motion being overruled, they brought the case to this court and assigned twenty-nine errors as follows:
The first error complained of is that the court below erred in refusing the motion of the defendant below to strike from the files of the court a motion filed by the counsel for plaintiff, to suppress certain depositions taken on behalf of defendant.
The record shows that the case was called for trial on the twelfth day of August, 1873, and that the motion to suppress the depositions was filed on the day following, after, as it is alleged, the trial had been commenced. While, on the other hand, it is claimed on the part of defendant in error that the trial did not commence until August 13, and that previously to the beginning of the trial the motion to suppress the depositions had been made and sustained. It therefore becomes a question for this court to determine when the trial properly commenced, so as to know whether under the statutes the time had expired when the motion should have been allowed or not.
The record further shows, that on the twentieth day of March, 1873, the then attorneys for the defendant in error, plaintiff below, viz: E. P. Johnson and Wm. H. Miller, [165] filed a motion to suppress portions of the same depositions, on the grounds of incompetency and irrelevancy, which motion was overruled, and it is therefore claimed that the plaintiff was estopped from filing any other exceptions; first, upon the ground that the question was res judicata; and, secondly, that all the objections to the depositions should have been included in the first motion; and, thirdly, .that the trial commenced on the twelfth of August, and that by the provision of the statute it was too late to sustain the motion to suppress.
The next error, or rather set of errors, complained of was the refusal of the court to permit the defendant in the trial below to introduce evidence to sustain the allegations of the answer to plaintiff’s petition that he, the plaintiff, was a member of the firm of Wright & Co., G. W. Wright & Co., and the various forms of. partnership alleged in the affidavits upon which the attachments were issued — for this purpose the defendant called several witnesses — and also claims that the suppressed depositions would have established the fact as stated, viz: that the plaintiff below in this action had admitted that he was a member of the firm thus variously presented; all of which the defendant below was prevented doing, both by the suppression of the depositions and the refusal of the court to admit'the witnesses called to testify to the statements of the plaintiff below made at various times and to different persons.
The next and last exception requiring special notice by this court was the refusal of the court below to order a non-suit at the close of the testimony for the plaintiff below. The record shows that the action of replevin was commenced against T. Jeff. Carr in his individual capacity, while the defendant below (Carr), in filing his answer, denies all the allegations of the plaintiff’s petition, and then justifies as sheriff. For this reason the counsel for the plaintiff below contend that, although the answer denies the allegations of the petition, yet this farther answer in justification is such an admission on his part as would not only [166] relieve the court from granting the nonsuit, but leaves it obligatory on the court to refuse the motion.
We have passed over a large number of the exceptions filed by the plaintiff in error, inasmuch as the whole controversy is involved in a few of the questions raised and upon which the plaintiff in error relies, and in passing upon the exceptions we propose to vary somewhat the order in which they are presented, and therefore first pass upon the question of the nonsuit; while we shall dot hold it to be error in the court below having refused the nonsuit when asked, neither would we have held it to have been error to have allowed it. There is so much in the discretion of the court on the subject of nonsuits, that the record should show beyond all doubt such a state of facts that a court of nisi prius has no grounds to either grant or refuse the demand for nonsuit (as the case may be), when made, before a reviewing court should reverse its rulihgs; in either case that such reviewing court should hesitate in setting aside the proceedings for either such granting or refusal. And while we think that we might have ruled differently, the record in our judgment does not present such a state of facts as would justify the court in calling it error to refuse the nonsuit.
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By the Court,
Eisher, C. J.
On or about the fourth of January, A. D., 1873, several attachments were issued by merchants in the city of Omaha, in the state of Nebraska, against a firm alleged to be composed of the defendant in error, and several others, sometimes known by the name and style of Wright & Co., G. W. Wright & Co., and by several other designations. That by virtue of these several [164] writs of attachment, certain goods, wares and merchandise, in the possession of the said defendant in error, who it was alleged was a member of the firm aforesaid in all its various forms, were attached to satisfy the claims of the attaching creditors by the sheriff of Laramie county. Shortly after the service of the said attachments, and the taking possession by the said sheriff of the said goods, wares and merchandise, the defendant in error, who was plaintiff below, had a writ of replevin issued, and, by virtue thereof, the said goods were returned to him by the sheriff, and on the trial, the defendant in error, who'was plaintiff below, recovered a verdict for the sum of fifteen dollars. The counsel for the plaintiff in error, who was defendant below, filed his motion for a new trial, and assigned the same errors, which are set out in the petition in error; said motion being overruled, they brought the case to this court and assigned twenty-nine errors as follows:
The first error complained of is that the court below erred in refusing the motion of the defendant below to strike from the files of the court a motion filed by the counsel for plaintiff, to suppress certain depositions taken on behalf of defendant.
The record shows that the case was called for trial on the twelfth day of August, 1873, and that the motion to suppress the depositions was filed on the day following, after, as it is alleged, the trial had been commenced. While, on the other hand, it is claimed on the part of defendant in error that the trial did not commence until August 13, and that previously to the beginning of the trial the motion to suppress the depositions had been made and sustained. It therefore becomes a question for this court to determine when the trial properly commenced, so as to know whether under the statutes the time had expired when the motion should have been allowed or not.
The record further shows, that on the twentieth day of March, 1873, the then attorneys for the defendant in error, plaintiff below, viz: E. P. Johnson and Wm. H. Miller, [165] filed a motion to suppress portions of the same depositions, on the grounds of incompetency and irrelevancy, which motion was overruled, and it is therefore claimed that the plaintiff was estopped from filing any other exceptions; first, upon the ground that the question was res judicata; and, secondly, that all the objections to the depositions should have been included in the first motion; and, thirdly, .that the trial commenced on the twelfth of August, and that by the provision of the statute it was too late to sustain the motion to suppress.
The next error, or rather set of errors, complained of was the refusal of the court to permit the defendant in the trial below to introduce evidence to sustain the allegations of the answer to plaintiff’s petition that he, the plaintiff, was a member of the firm of Wright & Co., G. W. Wright & Co., and the various forms of. partnership alleged in the affidavits upon which the attachments were issued — for this purpose the defendant called several witnesses — and also claims that the suppressed depositions would have established the fact as stated, viz: that the plaintiff below in this action had admitted that he was a member of the firm thus variously presented; all of which the defendant below was prevented doing, both by the suppression of the depositions and the refusal of the court to admit'the witnesses called to testify to the statements of the plaintiff below made at various times and to different persons.
The next and last exception requiring special notice by this court was the refusal of the court below to order a non-suit at the close of the testimony for the plaintiff below. The record shows that the action of replevin was commenced against T. Jeff. Carr in his individual capacity, while the defendant below (Carr), in filing his answer, denies all the allegations of the plaintiff’s petition, and then justifies as sheriff. For this reason the counsel for the plaintiff below contend that, although the answer denies the allegations of the petition, yet this farther answer in justification is such an admission on his part as would not only [166] relieve the court from granting the nonsuit, but leaves it obligatory on the court to refuse the motion.
We have passed over a large number of the exceptions filed by the plaintiff in error, inasmuch as the whole controversy is involved in a few of the questions raised and upon which the plaintiff in error relies, and in passing upon the exceptions we propose to vary somewhat the order in which they are presented, and therefore first pass upon the question of the nonsuit; while we shall dot hold it to be error in the court below having refused the nonsuit when asked, neither would we have held it to have been error to have allowed it. There is so much in the discretion of the court on the subject of nonsuits, that the record should show beyond all doubt such a state of facts that a court of nisi prius has no grounds to either grant or refuse the demand for nonsuit (as the case may be), when made, before a reviewing court should reverse its rulihgs; in either case that such reviewing court should hesitate in setting aside the proceedings for either such granting or refusal. And while we think that we might have ruled differently, the record in our judgment does not present such a state of facts as would justify the court in calling it error to refuse the nonsuit.
On the questions of suppressing the depositions, we have no doubt that the court erred. First, we think all the exceptions to the depositions should have been raised at the time the exceptions were presented at the March term, so that the court might have passed upon them. It was folly to expect a court to pass upon the question of their relevancy or pertinence at that time, inasmuch as neither of these questions could have been passed upon previous to the hearing of the other parts of the testimony, which alone could enable the court to know whether the depositions were proper or not; but if the question as to the time of taking the depositions had been raised there, there need be no doubt upon that point, as it is one settled by the statute. But we think that one question having been raised, it was the duty of the party raising it to present any and all other objections at the same [167] time. Furthermore we think the record shows that the trial had commenced before the motion to suppress for want of proper notice was raised. It was held by the counsel for defendant in error, on the argument upon the exceptions, that the trial commenced when the jury was sworn. This was a special view of the subject, but we think very unsound; sad experience has taught us that a very large space of time is often consumed in the trial of cases before the jury is sworn, or even called, and we think the record clearly justifies us in considering this case on trial on the twelfth of August, 1873, while the motion to suppress the depositions does not claim to have been filed until the thirteenth; therefore in either view of the case we think the motion came too late. If we are right in holding that all the exceptions should have been taken at the March term, and we have no doubt upon that question, then it was not important whether the trial commenced on the twelfth or thirteenth of August, either day would be too late to make a motion to suppress. While admitting that this point' was not well taken by the plaintiff in error, if the trial commenced on the twelfth of August, and the motion filed on the thirteenth, it was a fatal error to refuse the motion to strike off the plaintiff’s (below) motion to suppress.
On the several exceptions to the ruling of the court to refuse the defendant below to prove the partnership of George L. Wright in the firm, which has assumed so many forms, we think there was manifest error. The defendants below set out in their answer the fact, or at least alleged fact, that the plaintiff was not the owner of the goods taken in replevin, but that they were held by the said firm. Surely they had a right to offer proof to establish this allegation; and if the questions which the record shows were put to the several witnesses, or at least some of the questions, were refused, we are at a loss to conceive how it would be possible to establish the allegations of the defendant’s answer.
We fail to find anything in the authorities cited which relieves the rulings of the court from the errors above re[168] ferred to. While we have passed over a large number of the exceptions set out in the brief of .the plaintiff in error, we think there are ample grounds in the ones passed upon to justify us in refusing to affirm the proceedings as presented in the record.
We therefore reverse the judgment, and remand the case for a new trial.