Borland v. Chi., M. & St. P. Ry. Co.

• Decision Date: 04 June 1889
• Citation: 42 N.W. 590,78 Iowa 94
• Court: Iowa Supreme Court
• Parties: BORLAND v. CHICAGO, M. & ST. P. RY. CO.

78 Iowa 94

42 N.W. 590

BORLAND

v.CHICAGO, M. & ST. P. RY. CO.

Supreme Court of Iowa.

June 4, 1889.

Appeal from district court, O'Brien county; SCOTT M. LADD, Judge.

Action to recover the value of certain hay in stacks, burned by a fire set out by an engine operated upon defendant's railroad. There was a judgment on a verdict for plaintiff. Defendant appeals.Geo. E. Clarke and Burton Hanson, for appellant.

Milt H. Allen, for appellee.

BECK, J.

1. The objections to the judgment in this case will be considered in the order of their discussion by defendant's counsel. A deposition had been taken in another case by the plaintiff therein, who was not a party in this case. A stipulation was entered into by the parties to this case, to the effect that plaintiff in this case may introduceand use in evidence in his behalf the deposition, subject to the objection by defendant which could be made to it in the case in which it was taken. The deposition was not filed in this case. Defendant offered the deposition, and objection thereto was, in our opinion, correctly sustained by the court. The deposition was not taken nor filed in this case. It was stipulated that it should be received in this case on the part of plaintiff. No stipulation provides that the defendant might introduce it.

Counsel for defendant, in support of his right to introduce the deposition, stated professionally that the counsel on the other side stated to him that the defendant might offer the deposition subject to objection and rebutting evidence. This statement is not admitted to be correct by the other side. In matters of this kind, we cannot act upon the statement of counsel as to the substance or effect of an oral agreement of this character. See Code, § 213, par. 2. Certainly, for another reason, we cannot reverse the action of the court below on the ruling complained of. It was not shown that the statement of defendant's counsel constituted all the evidence upon which the district court acted in deciding the matter.

A motion for a continuance, on the ground of surprise by reason of the exclusion of the deposition, and consequent failure of defendant to have witnesses present to testify upon the point to which the deposition related, was overruled. The ruling is made the ground of objection in this court, which is not urged by counsel, except in two or three lines of the printed argument. We think no abuse of discretion of the judge in overruling the motion is shown. He...