Bean v. Lambert

• Decision Date: 15 December 1896
• Docket Number: 226.
• Citation: 77 F. 862
• Parties: BEAN v. LAMBERT et al.
• Court: U.S. District Court — District of Minnesota

77 F. 862

BEAN v. LAMBERT et al.

No. 226.

United States Circuit Court, D. Minnesota.

December 15, 1896

Stringer & Seymour, for complainant.

William G. White, for defendants.

LOCHREN District Judge.

This cause being at issue and ready for hearing at the general term of this court begun and holden in the city of Duluth Minn., on the 13th day of October, 1896, was by stipulation of the parties set down for hearing and final argument before the judge of said court at chambers either at St. Paul or Minneapolis, and, pursuant to said stipulation, was thereafter, on the 11th day of December, 1896, brought on for hearing at chambers in the city of Minneapolis in said district. The complainant appeared by Stringer & Seymour, her attorneys; and the defendants Mary A. Lambert, Alfred H Lambert, and Ezra F. Lambert, by their attorney, William G White, present and file briefs and arguments in said cause.

These defendants, by their said counsel, urge several objections made by them before the referee to the taking of the evidence in the cause. It appears, from the record filed by the referee, that the counsel for complainant, at the commencement of the taking of the testimony, requested that the witnesses Ezra F. Lambert and A. H. Lambert be examined separately, and not in the presence of each other, and that A. H. Lambert be excluded from the room while the witness Ezra F. Lambert was testifying in the suit, and that the referee directed that this be done and that all the witnesses be examined separately from each other. Counsel for these defendants in his brief urges that this was error on the part of the referee, as the witnesses Ezra F. Lambert and A. H Lambert were each parties to the cause, and had a right to be present during the taking of the testimony of all the witnesses, and that the rule of practice permitting witnesses to be examined separately from each other would not apply to parties to the cause. It is probable that this was a valid objection, but the defendants should then have asked for a suspension of the examination of the witnesses, and brought the question before the court, or, if unable so to do, and still desirous of availing themselves of the objection, should have moved the court to suppress the depositions, and have the testimony retaken. It does not appear that the defendants were injured in any way in presenting their defense by the course adopted by the referee; and, after having allowed the evidence to be filed without attempting any correction, and having set the cause down for hearing upon the evidence so taken, and asked the judgment of the court upon it, it is too late to urge an objection of this kind.

Another objection, urged in the brief of counsel for these defendants, relates to the admission of the books of J. C Norton, the agent of complainant, as to the transactions in dispute. There is nothing in the point that these books were not proven in accordance with the statutes of Minnesota relating to account books, as the books were not introduced for the purpose of proving any items of account. They were simply introduced as entries claimed to have been made at the times when the transactions actually occurred, and only for the purpose of corroborating the testimony of J. C. Norton as to the dates of those transactions, and...