Bell v. Jamison

• Decision Date: 01 December 1890
• Citation: 14 S.W. 714,102 Mo. 71
• Parties: BELL v. JAMISON.
• Court: Missouri Supreme Court

14 S.W. 714

102 Mo. 71

BELL v. JAMISON.

Supreme Court of Missouri.

December 1, 1890.

DEPOSITIONS — WAIVER OF IRREGULARITIES — TRIAL — CROSS-EXAMINATION.

1. The omission of the name of the court in a notice for the taking of a deposition, which omission could not have misled the party notified, should be taken advantage of by a motion to suppress the deposition, and not by an objection on the trial to the admission of the deposition as evidence.

2. The objection that there was no evidence that the witness whose deposition was offered did not reside in the county, as required by Rev. St. Mo. 1879, § 2157, cannot be raised for the first time on appeal.

3. The order in which evidence shall be introduced is largely within the discretion of the trial court, and its action in this respect will not be interfered with unless one of the parties has been prejudiced thereby on the merits.

4. Plaintiff in ejectment who claims under a deed conveying the land by metes and bounds cannot be cross-examined as to whether or not he purchased by the acre.

Appeal from circuit court, Lincoln county; E. M. HUGHES, Judge.

Thomas D. Bell sued W. D. Jamison in ejectment. Judgment was rendered for plaintiff, and defendant appeals. Rev. St. Mo. 1879, § 2157, provides that a deposition may be read in evidence when the witness resides "in a county other than that in which the trial was held."

Martin & Avery, for appellant. Silver & Brown and R. H. Norton, for respondent.

BRACE, J.

This is an action in ejectment for the possession of a strip of land 60 feet wide on the north side of a tract of land in Lincoln county, conveyed by metes and bounds by the defendant and other heirs of his father to one James H. McGee, on the 7th of March, 1881, and afterwards, on the 9th of September, 1884, conveyed by said McGee to the plaintiff. The strip is within the inclosure of the defendant (who owns the tract on the north) by means of a fence which is on or about the same line that it was when the conveyance was made to McGee. The plaintiff asserts that the true line of his premises acquired by virtue of said deeds is 60 feet north of said fence. This the defendant denies; says he has been in the continuous adverse possession of the same for more than 10 years before this suit was commenced; and that the line to which he claims was established by agreement as the line between the two tracts by his father, under whom the plaintiff and the grantors in the deed to McGee derived the title conveyed to and under which the plaintiff now claims the strip, and the owners of the tract north of it, and to which the defendant has since acquired title; and that the plaintiff is thereby estopped from denying that such line is not the true line. The controversy is solely upon the proper location of the boundary line between plaintiff and defendant — coterminous proprietors; the plaintiff claiming that the proper boundary line was that surveyed by John Wilson, county surveyor of said county, recently before this suit was brought, and which ran about 60 feet north of defendant's south fence, and the defendant claiming that the properline was that on which his fence was located and which was the same surveyed by John C. Downing, in 1870, who was also at that time the county surveyor of said county. If on the evidence the Wilson survey was the true line the plaintiff was entitled to a verdict; not otherwise. If on the evidence the Downing survey was the true line, or if it was not the true line, but that line had been agreed upon and established between the grantors under whom both parties claim as the boundary line between their premises, whether the same was the true line or not, in either event the defendant was entitled to a verdict. The verdict of the jury was for the plaintiff, and, from the judgment rendered thereon, the defendant appeals, and assigns several errors for reversal, which will be noticed in their order.

1. There is nothing in the objection to the admission of the evidence of Guyon Wilson in...