F.A. Patrick & Co. v. Nurnberg

Decision Date07 April 1911
Citation131 N.W. 254,21 N.D. 377
CourtNorth Dakota Supreme Court

Rehearing denied May 6, 1911.

Appeal from District Court, Stutsman county; Burke, Judge.

Action by F. A. Patrick & Company against Herman Nurnberg. Judgment for plaintiff, and defendant appeals.


John U Hemmi, for appellant.

Motion to suppress before jury is called is in time. Walters v Rock, 18 N.D. 45, 115 N.W. 511; Anderson v. First Nat Bank, 6 N.D. 497, 72 N.W. 916.

Substantial compliance with law as to certificate to deposition is required. 13 Cyc. Law & Proc. pp. 943, 944, 981.

Incompetent evidence in a deposition may be excluded at trial. Raymond v. Edelbrock, 15 N.D. 231, 107 N.W. 194.

Oscar J. Seiler and A. W. Aylmer, for respondent.

Unless assignments of error refer to proper folios of abstract, they will not be noticed. McLaughlin v. Thompson, 19 N.D. 34, 120 N.W. 554; State v. School Dist. No. 50, 18 N.D. 616, 138 Am. St. Rep. 787, 120 N.W. 555; Flora v. Mathwig, 19 N.D. 4, 121 N.W. 63; Pendroy v. Great Northern R. Co. 17 N.D. 433, 117 N.W. 531.

Substantial compliance with law in certifying depositions is all that is required. 4 Enc. Ev. p. 440 (B) 82; 13 Cyc. Law & Proc. p. 952 (17) 34; Moore v. Booker, 4 N.D. 543, 62 N.W. 607; Ueland v. Dealy, 11 N.D. 529, 89 N.W. 325.

GOSS, J. BURKE, J., being disqualified, HON. CHAS. A. POLLOCK, Judge of the Third Judicial District, sat by request.



Defendant appeals from a judgment rendered against him in the district court of Stutsman county. This action is for money only, brought for goods sold and delivered, and was tried to a jury. No motion for new trial, as required by § 7226 of the Revised Statutes of North Dakota for 1905, was ever made or brought on for hearing, and therefore the sufficiency of the evidence to support the verdict cannot be inquired into. Nor was any specification of error embodied in or settled as a part of the statement of the case, as provided by § 7058, N. D. Revised Statutes 1905, and the statement should be wholly disregarded. Consequently, there is but little before this court for review, as the errors urged are to matters occurring during the trial in the admission of testimony, no error based on the judgment roll being alleged. Jackson v. Ellerson, 15 N.D. 533, 108 N.W. 241; Bertelson v. Ehr, 17 N.D. 339, 116 N.W. 335; Landis Mach. Co. v. Konantz Saddlery Co. 17 N.D. 310, 116 N.W. 333; Hedderich v. Hedderich, 18 N.D. 488, 123 N.W. 276.

However, as the error complained of consists of the court's refusal to suppress a deposition, we will pass upon that matter. Appellant questions the sufficiency of the certificate of the notary authenticating the deposition. Our statute (§§ 7284, 7285) regulates the authenticating the and certification of depositions. The deposition in question was taken pursuant to legal and sufficient written notice, and at the time and place designated in the notice, and was subscribed by the witness in the presence of the officer certifying thereto, after the witness was duly sworn to testify the truth; all of which appears from the certificate of the notary taking such deposition. But such certificate omits to certify that the deposition was reduced to writing by some proper person, and omits to name the person so reducing the deposition to writing, failing to comply with subdivision 2 of § 7285 of the Revised Statutes of 1905. The deposition was in all other respects properly taken and certified. It had been filed with the clerk more than a month prior to the trial, without exceptions being filed thereto. After the term of court at which the case was tried had been in progress for a period of eight days, defendant's counsel filed written exceptions to the depositions, asking their suppression because of the failure of the certificate to conform to the statutory requirements in the particulars above recited. Such objections were brought to the attention of the court at the time the case was called for trial, when the court overruled the motion then made for the suppression of the deposition. There is some question whether the motion to suppress was brought on for hearing before the trial of the case was actually begun, but we will take it for granted the written objections taken and motion to suppress transpired before the commencement of the trial, and determine whether the omission of the certificate to state that the deposition was reduced to writing by some person named therein necessarily requires the suppression of the deposition, in the absence of any showing of prejudice resulting from noncompliance with the statute. This question of practice should be settled, and we pass upon it.

The statute quoted prescribes the rules under which depositions may be taken, and designates that "the officer taking the deposition shall annex thereto a certificate showing the following facts: . . . (3) that the deposition was reduced to writing by some proper person, naming him." Notwithstanding the language of the statute is mandatory, the statute is one regulating civil procedure, and is construed to be directory, as similar statutes are usually interpreted to be when providing a method or manner only of procedure, in the absence of some strong reason for a contrary construction. A substantial compliance with the statute is all that is required, and in determining such compliance the court is not limited to the officer's return, but may supplement it by anything appearing in or from the deposition itself. Accordingly, while the certificate did not state that the deposition was reduced to writing by some proper person named, the deposition shows for itself that it was reduced to writing, or rather, was typewritten. The presumption then applies that either the notary taking the deposition or the witness so testifying reduced the deposition to writing; in either of which cases had the certificate so recited, the deposition would not, because thereof, be subject to attack, as either the notary taking the deposition or the witness himself would be a proper person to reduce the deposition to writing. The presumption in favor of regularity of proceedings, and proper performance by the officer of his duties in taking the deposition, also applies in the absence of evidence by notarial certificate or otherwise to the contrary; and the burden is on the party moving to suppress the deposition to overcome such presumption, otherwise the presumption applies and establishes the admissibility of the deposition. The following cases are the holdings of the various states having statutes similar to ours on this same question:

Imboden v. Richardson, 15 La.Ann. 534, held "that the presumption of law is that the magistrate did his duty, and that the answers were written either by himself or by a person not interested in the event of the suit, and that the burden of proof was on the party objecting to rebut this presumption." And Blair v. Collins, 15 La.Ann 683, to the effect that "it is not necessary that it should appear by whom the deposition was written." See also Horton v. Arnold, 18 Wis. 212; Winton v. Little, 94 Pa. 64, that "it is to be presumed that the depositions were properly reduced to writing, and subscribed by the witnesses, until the contrary was...

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