Accola v. Chi., B. & Q. R. Co.
| Decision Date | 07 December 1886 |
| Citation | 30 N.W. 503,70 Iowa 185 |
| Court | Iowa Supreme Court |
| Parties | ACCOLA v. CHICAGO, B. & Q. R. CO. |
OPINION TEXT STARTS HERE
Appeal from circuit court, Wapello county.
Action to recover for two mules, alleged to have been killed by one of the defendant's trains. There was a trial to a jury, and verdict and judgment were rendered for the plaintiff. The defendant appeals.David C. Beaman and E. H. Stiles, for appellant, Chicago, B. & Q. R. Co.
Williams & Jaques, for appellee, Accola.
1. The plaintiff, before the commencement of the action, took the testimony of three witnesses, to be used as depositions. On the day of the trial the defendant filed written objections to the depositions. Afterwards, upon the same being offered by the plaintiff in evidence, the defendant orally objected, upon the grounds set out in the written objections. The court overruled the objections, so far as they went to the depositions as a whole, and the defendant excepted. Two of the depositions were read in evidence, and, upon the ruling in admitting the evidence, the defendant assigns error.
The depositions were taken under a statute which provides for perpetuating testimony. Code, §§ 3745, 3750, and the sections included. It is not necessary to set out all the objections made, nor the statute in full. The statute provides that “the applicant shall file in the office of the clerk of the district or circuit court a petition, to be verified, in which shall be set forth, specially, the subject-matter relative to which testimony is to be taken, and the names of the persons interested, if known to the applicant; and, if not known, such general description as he can give of such persons as heirs, devisees, alienees, or otherwise.”
In the case at bar, the party interested, as the only party sought to be charged with liability, was the Chicago, Burlington & Quincy Railroad Company, the defendant herein. Under the statute, the petition should have set forth the name of the company. It is insisted by the defendant that the petition filed in this case does not do so. The fact is that the petition shows that the injury was caused by the “C., B. & Q. R. R. Co.,” and that the plaintiff expects to bring an action against the same to recover his damages; and does not contain the name of the defendant, unless the letters above set out constitute its name. They do not, of course, constitute its legal name; but it is said they are the name by which it is popularly known, and that the court can take judicial notice of such fact. But, in our opinion, we should be going too far to hold that we can. It is certainly not true that every railroad company is popularly known by the initial letters of the words constituting its legal name, nor is there any dividing line between those which are thus known and those which are not. To hold, then, that a railroad company can in legal proceedings be properly designated by the initial letters of the words constituting its name, where it is popularly known by such initial letters, and that it cannot be thus properly designated where it is not thus popularly known, would lead to such difficulties as to demonstrate at once the impropriety of the rule.
It is said, however, that in the case at bar the defendant appeared, and filed cross-interrogatories in the proceedings to perpetuate testimony, and so it was not prejudiced by the error in name, if there was any. But the plaintiff's difficulty is that he fails to furnish any proper evidence that the defendant did thus appear. A paper was filed, with cross-interrogatories attached, but it does not appear to be signed by the defendant, nor to contain its name. The paper is signed “C., B. & Q. R. R. Co.,” and we have already held that we cannot take judicial notice that those letters constitute even the popular name of the defendant. It follows, then,...
To continue reading
Request your trial