Dannefelser v. Weigel

• Decision Date: 31 March 1858
• Citation: 27 Mo. 45
• Parties: DANNEFELSER, Appellant, v. WEIGEL, Respondent.
• Court: Missouri Supreme Court

27 Mo. 45

DANNEFELSER, Appellant,

v.WEIGEL, Respondent.

Supreme Court of Missouri.

March Term, 1858.

1. Where a party to a suit, through no negligence on his part, but through reliance upon the promises of a notary, before whom a deposition is being taken, and of the opposing counsel, is prevented from cross-examining the witness, the deposition should be suppressed.

2. Where the delivery of a chattel is conditional, the property will not vest until the condition is performed, or the performance thereof is waived.

Appeal from St. Louis Court of Common Pleas.

Spies & Burt, for appellant.

Kribben, for respondent.

RICHARDSON, Judge, delivered the opinion of the court.

In our opinion, the court ought to have sustained the plaintiff's motion to suppress the deposition of Louisa Bollet.

The inattention and negligence of attorneys ought not to be encouraged or countenanced; but in this case Mr. Spies was not guilty of either, but acted under an emergency, and on assurances that would have lulled the most prudent man into security. It appears from his affidavit that he attended for his client on the day and hour, and at the place appointed by the defendant in his notice for taking depositions; that he found there the notary, the witness, the defendant, and Mr. Kribben, his attorney, and that as his wife, who was an invalid, and was about to leave the city for her health, required his attention for a little while, he requested the notary and Mr. Kribben not to delay taking the deposition, but to detain the witness for an hour that he might cross-examine her on his return. They promised to do as he had requested, and on the faith of their promise he went away, but returned within an hour, and, as he believes, in about half an hour, when he found that the witness had given her deposition and left. The sudden leaving of the witness was explained by the statement that she was in a hurry; but the notary and the plaintiff's attorney promised that she should be at the office again that day at five o'clock, at which time he attended, but she was not there, and the promise was renewed that she should be there the next day at the same hour. He again attended the next day at the appointed time, but the witness was still absent; when another appointment was made, with the like result, at which time he was informed that they could not procure her attendance for the reason that she had left the city the day before to reside in Illinois.

No blame is attached to Mr. Kribben in...