Bagg v. Shoenfelt
| Decision Date | 26 November 1918 |
| Docket Number | 9194. |
| Citation | 176 P. 511,71 Okla. 195,1918 OK 670 |
| Parties | BAGG et al. v. SHOENFELT. |
| Court | Oklahoma Supreme Court |
November 26, 1918.
Syllabus by the Court.
Section 5090, Rev. Laws of 1910, requires exceptions to depositions as a whole to be in writing, to specify the grounds of objection, and to be filed with the papers in the cause before the commencement of the trial; and where, for the first time, oral objections are made to a deposition as a whole when the same is offered in evidence at the trial, it is not error for the court to overrule the objections, nor do the facts shown in the record (stated in the opinion) justify a noncompliance with the statute.
An agency resting in parol can generally be proved by the testimony of either the principal or the person who claims to act as agent, and the same rule applies when the purported agent is either the husband or wife of the principal.
The husband is a competent witness to testify on behalf of his wife in the trial of a civil action, where the evidence discloses that he acted as her agent in reference to the matters to which his evidence is directed.
The filing by the wife of an inventory of her separate personal property in the office of the register of deeds in the county of her residence, in compliance with section 3356, Rev. Laws of 1910, is notice and prima facie evidence of the title of the wife to such property; but the failure to file such an inventory does not, in a civil action, estop her to prove her ownership by other evidence.
Where a piano, the separate personal property of the plaintiff, is levied upon and sold under execution as the property of her husband, she is not estoped from claiming the title to said piano by reason of the fact that her husband rented the same as her agent.
Error from Superior Court, Muskogee County; H. C. Thurman, Judge.
Action by Will D. Shoenfelt against Charles A. Bagg and the Kroh Music Company. Judgment for plaintiff, and defendants bring error. Affirmed.
Maxey & Brown, of Muskogee, for plaintiffs in error.
P. A Gavin, of Muskogee, for defendant in error.
This is an action instituted by Will D. Shoenfelt, defendant in error, plaintiff below, against Chas. A. Bagg and the Kroh Music Company, to recover one Steinway piano of the value of $600. By answer the defendants denied that the plaintiff was the owner of the piano and pleaded matters which they claimed estopped her to assert title to it. The jury returned a verdict for the plaintiff, upon which judgment was rendered to reverse which this proceeding in error was commenced. Hereinafter the parties will be styled as they appeared in the trial court.
Plaintiff did not personally appear at the trial, but her deposition was admitted in evidence over the objection of the defendants. The specific objection made to the deposition was that the notary public before whom it was taken failed to certify "that the witness was first sworn to testify the truth, the whole truth and nothing but the truth," as provided by section 5086, Rev. Laws of 1910. The language used in the certificate is, "The witness in the foregoing deposition, named Will D. Shoenfelt, was by me duly sworn." Section 5090, Rev. Laws of 1910, relative to exception to depositions, provides:
"Exceptions to depositions as a whole shall be in writing, specifying the grounds of objections, and filed with the papers in the cause before the commencement of the trial."
This statute was not complied with by the defendants, and no excuse is made in the brief filed on their behalf for failure so to do, although the record shows that when the deposition was offered in exidence at the trial on November 24, 1916 one of counsel for the defendants stated to the court that it was filed on May 11, 1916, opened by counsel for plaintiff on that day, and had been in his possession continuously since said time, which, it was urged, prevented defendants from filing a motion to suppress the deposition or from making any objection thereto before the trial commenced. We do not think the oral showing made when the deposition was offered excused a compliance with the statute, in view of the fact that defen...
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