Farmers' Loan & Trust Co. v. De Moulin

195 N.W. 444, 46 S.D. 576, 1923 S.D. LEXIS 89

• Court: South Dakota Supreme Court
• Decided: October 18, 1923
• Docket: File No. 5118
• Status: Published

Opinion

GATES, J.-

This is an action upon a promissory note. At the conclusion of the trial the court directed a verdict in favor of plaintiff. From the judgment and order denying new trial defendant appeals.

[1] It is first urged that the court erred in sustaining plaintiff’s demurrer to defendant’s counterclaim. The defendant, in-. stead of standing on said pleading, answered over. He thereby abandoned his right to further challenge the ruling complained of. Sogn v. Koetzle, 38 S. D. 99, 160 N. W. 520.

[2] Appellant next complains of the refusal of the court to suppress the depositions of Toy and Dberfler. A stipulation had been entered into between the attorneys for the parties that the depositions of Ferguson, and other witnesses might be taken at Sioux City at a time and place named. The objection is that the names of Toy and Doerfler were not mentioned in the stipulation. The words “and other witnesses” in the' stipulation preclude the appellant from making such objection.

[3] It is urged that the trial court erred in permitting respondent’s counsel to read certain parts of certain depositions without reading the whole thereof to the jury. Counsel stated to the trial court that the depositions covered matters pertinent to their main case, and' matters perinent only -in rebuttal, and that they desired at that time to read only those matters pertinent to the main case. Permission was given. The part read conformed to the offer, and did' not consist of mere fragmentary excerpts. We do not think the court erred in permitting respondent’s counsel to refrain from reading those portions of the depositions which pertained to matters in rebuttal, that period in the case not having then been reached. 18 C. J. 735.

[4] The chief argument of appellant concerns the admission in evidence of the note in suit marked Exhibit C. It is urged that the note was not attached to nor returned with the depositions, and therefore that there is no proof that the note testified to and described in the depositions is the same note that was offered in evidence, and that without the depositions the respondent did not prove its case. They rely upon Fountain City Drill Co. v. Lindquist, 22 S. D. 7, 114 N. W. 1098, wherein the court said:

“Although the statute of this state provides no special method for identifying pr making a letter or other document a part of the deposition of a witness, it certainly must be in some manner attached or referred to therein, or returned therewith, or.be mentioned in the certificate of the officer before whom 'such deposition was taken.”

It was clearly apparent to the trial court from the pleadings and the evidence, as it is to ús, that the note offered in evidence was the note upon -which suit was brought, and was, arid could only have been, the note referred to in the depositions. We think the trial -court did not abuse -its discretion nor act arbitrarily in permitting the introduction of the note in evidence.

■Finding no prejudicial error in the record, the judgment and order denying new trial are affirmed.

■NIot-e. — Reported, in 195 N. W. 444. See, Headnote (1), American Key-Numbered Digest, '-Pleading, Key-No. 418(3), 31 -Cyc. 744; (2) Stipulations, Key-No. 14(1), 36 Cyc. 1291; (3) Depositions, Key-No. 86, 18 C. J. Sec. 34'6; (4) Depositions, • Key-No. 68, 18 C. J. 'Sec. 236.