Bonney v. Cocke

• Decision Date: 13 June 1883
• Citation: 16 N.W. 139,61 Iowa 303
• Parties: BONNEY v. COCKE.
• Court: Iowa Supreme Court

61 Iowa 303

16 N.W. 139

BONNEY

v.COCKE.

Supreme Court of Iowa.

Filed June 13, 1883.

Appeal from Warren circuit court.

The plaintiff is the wife of J. H. Bonney, and brought this action for damages sustained by reason of the defendant having sold intoxicating liquors to her husband, whereby she was damaged in her means of support. Trial by jury, verdict and judgment for the plaintiff, and defendant appeals.Todhunter & Hartman and H. W. Maxwell, for appellant.

Henderson & Berry, for appellee.

SEEVERS, J.

1. At the December term a motion was filed by the appellee to strike out substantially all the material portions of the abstract upon which errors were assigned, on the ground the rulings of the court complained of and the evidence as set out had not been preserved and identified by a bill of exceptions. This motion remained undisposed of, and at the adjourned term in January the appellant filed a transcript, which the appellee moved to strike for several reasons. The case and motions were submitted together. The first error assigned that is argued by counsel relates to the refusal of the court to suppress the deposition of J. H. Bonney, which was taken on commission. The notice of the suing out of the commission was served on the defendant and was accompanied with a copy of the interrogatories, and the defendant was thereby notified the commission would issue on the twenty-fifth day of February, 1882, and it was served on the twentieth day of February in the county where the defendant resided and where the action was pending. The commission did not issue until the second day of March, 1882, on which day the notice and interrogatories were filed in the clerk's office.

It is objected the court erred in overruling the motion to suppress because the service of the notice was insufficient. The point made is that the defendant was entitled under the statute to “five clear days' notice.” The statute does not so provide, but simply that the party served shall have five days' notice of the day the commission will issue. Code, § 3730. The statutory mode of computing time is to exclude the first and include the last, or day the commission is to issue. Subdivision 23 of section 45 of the Code. The point under consideration is not, therefore, well taken. It is next objected the notice was not on file in the clerk's office on the day fixed for the commission to issue. There is no statute so requiring. But it is said it should be on file at the time stated, so that the defendant could have then filed cross-interrogatories. The defendant had been served with a copy of the interrogatories, and the statute provides he shall file such cross-interrogatories as he desires on or before the day fixed for the commission to issue. Code, § 3728. The object in serving him with a copy of the interrogatories was to enable him to do this. Resort to the original was unnecessary. Lastly, it is urged the commission was not issued until seven days after the day fixed in the notice. This is an “unimportant deviation,” without prejudice to the defendant, and therefore is not sufficient to exclude the deposition. Code, § 3741. The court did not err in overruling the motion.

2. The next matter to which our attention is called relates to overruling defendant's challenge of certain persons called as jurors. The abstract shows that five persons were challenged, but it fails to show the ground of challenge except as to one, which was simply for “cause,” but what cause is not...