Edwards v. Huer

• Decision Date: 27 April 1881
• Citation: Edwards v. Huer, 46 Mich. 95, 8 N.W. 717 (Mich. 1881)
• Court: Michigan Supreme Court
• Parties: EDWARDS v. HUER and another.

8 N.W. 717

46 Mich. 95

EDWARDS v. HUER and another.

Supreme Court of Michigan

April 27, 1881

A party intending to rely upon an objection to a deposition that the return of the notary does not show that he was in no way interested in the case, it not being claimed that he was, in fact, so interested, must, where the depositions are returned some time prior to the trial, be raised before the hearing by notice of motion to strike out or suppress. Minutes of testimony taken by a court stenographer are not of themselves admissible as evidence.

Error to Houghton.

Thomas L. Chadbourne, for plaintiff in error.

Chandler & Grant, for defendants in error.

GRAVES J.

There was no error in refusing to exclude Hugh's deposition. It was taken on stipulation which provided that the person to act in taking it should be a notary public and not of counsel nor in any manner interested for either party and that this should be certified by the notary in his return. The only grounds of objection not distinctly waived by the stipulation were competency and relevancy. On the reception of the deposition by the clerk due notice was given according to the terms of rule 51, but no objection was intimated until its offer at the trial. The defendant's counsel then contested its admission on the ground that the notary's certificate was not full enough. It stated that he did not act as counsel for either party, but went no further.

There is no claim that as matter of fact he was interested, or that he acted dishonestly or partially, or that he lacked any qualification contemplated by the stipulation. Nor is there any claim that a literal adherence would have been of any practical value. The objection rests entirely on the fact that the certificate did not go to the exact extent specified. Assuming for the present purpose that the defect was a sufficient departure from the stipulation to justify complaint by the defendant, yet we are quite satisfied that fair practice required that he should either make known his objection in the mode described in the rule referred to or at least by reasonable notice of motion to strike the deposition from the files or suppress it. Having ample notice that the deposition had been returned in attempted compliance with the stipulation he owed it to the plaintiffs, who were resting upon his apparent acquiescence to use such diligence in evincing his objection as would enable them to make reasonable efforts to avert serious consequences. Kimball v. Davis, 19 Wend. 437; Zellweger v. Caffe, 5 Duer, 87; Sheldon v. Wood 2 Bos. 267; Rust v. Eckler, 41 N.Y. 488; Sturno v. Atlantic Mutual Ins. Co. 63 N.Y. 77; Doane v. Glenn, 21 Wall. 33.

Several parts of the deposition were particularly objected to but the rulings of the judge seem to have been regular. Complaint is made that the cross-examination of the witness Siller was unduly restricted. No doubt the questions excluded might have been allowed; but...