Britton v. Berry

Decision Date10 November 1886
CourtNebraska Supreme Court

ERROR to the district court for Dixon county. Tried below before CRAWFORD, J.


W. E Gantt, for plaintiff in error, cited: Wade, Notice, Sec 1,232. Harris v. Hill, 7 Ark. 452. In re Christie, 5 Paige 242.

J. J McAllister, for defendant in error.



Action on a promissory note executed by A. P. Berry to the order of Jos. P. Berry. The petition sets out the making of the note by the said A. P. Berry. That before the commencement of the action the said note was duly assigned to the plaintiff for value. That no part of it had been paid, etc. That on or about the month of May, 1879, the said A. P. Berry was adjudged by the circuit court of the State of Illinois to be a person of unsound mind, and that on or about the month of September, 1879, the defendant, Kate Berry, was appointed by said court conservator of the person and estate of the said A. P. Berry, and that she accepted such appointment and is now such conservator. A copy of the note is attached to the petition as an exhibit.

The answer consists of a general denial. An allegation of the want of any consideration for making and delivering the said note. That the said note came into the hands of the plaintiff long after the same became due, and that the said A. P. Berry, at the time of making, executing, and delivering said note was of unsound mind, and thereby incapable of making or of understanding the same. The answer also contains an allegation of a conspiracy on the part of the payee of the note, with other persons, to obtain possession of said note and use it for the purpose of attaching certain lands then lately conveyed by the said A. P. Berry. This allegation it is not deemed necessary to further notice.

The defendant also, in and by the said answer, sets up and pleads two several set-offs existing on the part of the said A. P. Berry against the payee of the said note, one of which counter-claims being for the breach and failure to keep and perform on the part of the said Jos. P. Berry of a certain contract in writing, set out in said answer, whereby the said Jos. P. Berry, in consideration of seven hundred and fifty dollars, agreed and contracted with the said A. P. Berry to give, assign, and set apart to him during the lifetime of said A. P. Berry the one-fifth part of all the crops to be raised on certain lands therein described in Wayne county, in this state. The other of said counter-claims being for horses and buggies by the said A. P. Berry sold and delivered to the said Jos. P. Berry, of the value of six hundred dollars.

There was a trial to a jury, which found for the defendant. There were also special findings: First, That A. P. Berry was not sane at the time of making and executing the note; and, Second, That James Britton purchased the note in suit before the maturity of the same.

A motion for a new trial having been overruled and judgment rendered for defendant, the cause is brought to this court on error by the plaintiff.

There are seven errors assigned, as follows:

1. The verdict is not sustained by sufficient evidence.

2. The verdict is contrary to law.

3. Errors of law occurring at the trial.

4. The court erred in giving instructions Nos. 2, 3, and 4, on its own motion.

5. The court erred in refusing to give instruction No. 9 asked for by plaintiff, and in giving it as modified by the court.

6. The court erred in refusing to give instruction No. 1 asked by plaintiff.

7. That under the special findings of the jury the judgment should have been for the plaintiff.

Plaintiff in the brief passes over the first and second assignments, and I will follow him to the consideration of the third.

The error here complained of is the overruling by the court of the motion of the plaintiff to suppress depositions taken on the part of the defendant. The points of objection to the depositions are, First, That the notice does not set out the street and number in the town in which the depositions were to be taken. Second, That the witnesses whose depositions were taken were illiterate persons, and their marks were in no manner witnessed or authenticated, and that the notary's certificate does not cure this defect by showing that they had been read to, or in any manner explained to them.

As to the first point, our statute, § 378 of the code provides that "Prior to the taking of any deposition, unless taken under special commission, a written notice specifying the action or proceeding, the name of the court or tribunal in which it is to be used, and the...

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