Cool v. Roche

• Decision Date: 12 October 1883
• Citation: 17 N.W. 119,15 Neb. 24
• Parties: COOL v. ROCHE.
• Court: Nebraska Supreme Court

15 Neb. 24

17 N.W. 119

COOL

v.ROCHE.

Supreme Court of Nebraska.

Filed October 12, 1883.

Error from Antelope county.

Sedgwick & Power, for plaintiff.

Thomas O'Day and W. M. Robertson, for defendants.

LAKE, C. J.

This is a petition in error from Antelope county. One of the errors complained of is the suppression of a deposition for want of sufficient notice of the taking. The notice was served on the twenty-fourth of February, 1881, at Neligh, in said county, that the deposition would be taken in York on the 28th. The twenty-seventh of February was Sunday, and it is agreed that, by the usual route of travel, two days were required to reach York from Neligh. The statute provides that “the notice shall be served so as to allow the adverse party sufficient time by the usual route of travel to attend, and one day for preparation, exclusive of Sundays and the day of service.” Code Civil Proc. § 378. Under this rule the notice in question is clearly defective, for, after excluding the day of service, Sunday, and the two days required to reach York, no time whatever is left for preparation. The deposition was rightly suppressed. The action below was replevin. It was brought by the defendants in error to obtain possession of some horses which had been mortgaged to them by one J. B. Meeham, October 12, 1880.

The plaintiff in error, who was defendant below, answered the petition, which was in the usual form in such cases: First, non detinet; and, second, a general denial. The defendants in error introduced in evidence, on the trial, the mortgage under which they claimed the horses, and showed by oral evidence that prior to the commencement of this action they had, as mortgagees, caused them to be taken in possession by P. D. Thompson, a constable, from whom they were taken by the plaintiff in error under a writ of replevin issued against him by a justice of the peace, at the suit of Will. E. Sharp, who, it appears, claimed them by virtue of two chattel mortgages, of which he was assignee, executed, one by J. B. Meeham, June 3, 1880, and the other by his wife, Samantha Meeham, April 15, 1880. As part of their case in chief, the defendants in error called the plaintiff as a witness, and asked him whether, at the commencement of the action, he had possession of the horses, to which he gave an affirmative answer. Upon this his counsel sought to bring out, by means of cross-examination, the right by which he held them. This the court held could not be done, and the ruling is now assigned as prejudicial error.

The rule here applicable is that the cross-examination of a witness must be restricted to facts and circumstances connected with the matters called out by the direct examination. 1 Greenl. Ev. § 445; Davis v. Neligh, 7 Neb. 84; Clough v. State, Id. 320. The fact of the horses being in his possession at that time, alleged in the petition, was put in issue by the answer. It was this fact simply which was brought out by the direct examination. The right by which he held it was a different thing altogether, and was not inquired of. To entitle them to recover against the plaintiff in error, it was necessary for the defendants, under the issue joined, to show that he had possession of the horses when the action...