Huntington Consolidated Lime Co. v. Powhatan Coal Co.

Indiana Court of Appeals

Huntington Consolidated Lime Co. v. Powhatan Coal Co.

86 N.E. 857, 44 Ind. App. 84, 1909 Ind. App. LEXIS 135

CourtIndiana Court of Appeals

DecidedJanuary 7, 1909

DocketNo. 6,273

StatusPublished

This text of 86 N.E. 857 (Huntington Consolidated Lime Co. v. Powhatan Coal Co.) is published on Counsel Stack Legal Research, covering Indiana Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Huntington Consolidated Lime Co. v. Powhatan Coal Co., 86 N.E. 857, 44 Ind. App. 84, 1909 Ind. App. LEXIS 135 (Ind. Ct. App. 1909).

Pincite

Opinions

Roby, J.

Appellee recovered a judgment for $260 on account of coal which it alleged was sold and delivered by it to appellant. The controverted question in the case was whether appellant, after having leased a lime plant, owned and operated by it prior to July 1,1904, to Martin Mindnich, who was previous to that time its foreman in conducting said business, had so held itself out as to be estopped from denying the authority of said lessee to bind it in the purchase of said coal.

1. The depositions of two witnesses were taken in the city of Toledo, which depositions were introduced in evidence, and are essential to support the judgment. Before the trial appellant moved to suppress said depositions, for the reason, among others, that they were taken before a notary public who was at the time a clerk in the employ of the plaintiff’s attorneys. An affidavit was filed in support of this motion, wherein such facts were stated. No counter showing was made, and the court overruled said motion. Upon the authority of Knickerbocker Ice Co. v. Gray (1905), [86]*86165 Ind. 140, this was reversible error. It is attempted to sustain the ruling on the ground that the attorneys at whose office the depositions were taken are not shown by the record to be attorneys in the ease. The fact is however shown by affidavit, and it is the fact, not the form in which it is made to appear, that is essential.

2. 3. It is also argued that appellant is estopped by delay in filing the motion from insisting upon it. The deposition was taken February 3, 1906, the affidavit setting up the aforesaid facts was made February 5, 1906, and the motion to suppress was made April 17,1906. The statute requires that a motion to suppress be filed before the beginning of the trial. §455 Burns 1908, §439 R. S. 1881. This was done. The mere fact that the trial was shortly to begin does not prevent the making of a motion to suppress depositions. The appellee vigorously insists that appellant had notice of the disqualification of the notary, and should therefore have made the motion at an earlier time, but to this it must be answered that appellee also had full knowledge both of the facts and the law involved, and therefore knew that a deposition so taken would be suppressed, upon motion made at any time before trial. Such knowledge deprives it of any basis for a claim of estoppel.

Other questions argued are not likely to arise upon a subsequent trial.

Judgment reversed, and the cause remanded, with instructions to sustain the motion for a new trial.

Free access — add to your briefcase to read the full text and ask questions with AI

Roby, J.

Appellee recovered a judgment for $260 on account of coal which it alleged was sold and delivered by it to appellant. The controverted question in the case was whether appellant, after having leased a lime plant, owned and operated by it prior to July 1,1904, to Martin Mindnich, who was previous to that time its foreman in conducting said business, had so held itself out as to be estopped from denying the authority of said lessee to bind it in the purchase of said coal.

1. The depositions of two witnesses were taken in the city of Toledo, which depositions were introduced in evidence, and are essential to support the judgment. Before the trial appellant moved to suppress said depositions, for the reason, among others, that they were taken before a notary public who was at the time a clerk in the employ of the plaintiff’s attorneys. An affidavit was filed in support of this motion, wherein such facts were stated. No counter showing was made, and the court overruled said motion. Upon the authority of Knickerbocker Ice Co. v. Gray (1905), [86]*86165 Ind. 140, this was reversible error. It is attempted to sustain the ruling on the ground that the attorneys at whose office the depositions were taken are not shown by the record to be attorneys in the ease. The fact is however shown by affidavit, and it is the fact, not the form in which it is made to appear, that is essential.

2. 3. It is also argued that appellant is estopped by delay in filing the motion from insisting upon it. The deposition was taken February 3, 1906, the affidavit setting up the aforesaid facts was made February 5, 1906, and the motion to suppress was made April 17,1906. The statute requires that a motion to suppress be filed before the beginning of the trial. §455 Burns 1908, §439 R. S. 1881. This was done. The mere fact that the trial was shortly to begin does not prevent the making of a motion to suppress depositions. The appellee vigorously insists that appellant had notice of the disqualification of the notary, and should therefore have made the motion at an earlier time, but to this it must be answered that appellee also had full knowledge both of the facts and the law involved, and therefore knew that a deposition so taken would be suppressed, upon motion made at any time before trial. Such knowledge deprives it of any basis for a claim of estoppel.

Other questions argued are not likely to arise upon a subsequent trial.

Judgment reversed, and the cause remanded, with instructions to sustain the motion for a new trial.

Cite This Page — Counsel Stack

Bluebook (online)

86 N.E. 857, 44 Ind. App. 84, 1909 Ind. App. LEXIS 135, Counsel Stack Legal Research, https://law.counselstack.com/opinion/huntington-consolidated-lime-co-v-powhatan-coal-co-indctapp-1909.

Opinions

Related

Cite This Page — Counsel Stack