Gano v. Wells
Decision Date | 11 June 1887 |
Citation | 36 Kan. 688,14 P. 251 |
Parties | JAY GANO v. JOHN D. WELLS, et al |
Court | Kansas Supreme Court |
Error from Marshall District Court.
ACTION brought on May 17, 1884, by Jay Gano against John D. Wells James S. Warden, and Thomas Johnson, to dissolve a copartnership existing between Gano and Wells, and for an accounting between them. At the March Term, 1885, the case was tried before the court and a jury. In answer to the following questions, the jury made the following findings, to wit:
Upon the foregoing findings, and the facts admitted in the pleadings, the court dismissed the action as against Warden and Johnson, and rendered judgment for $ 106.50 and costs, in favor of Gano and against Wells. Gano brings the case to this court for review.
Judgment affirmed.
J. A. Broughten, and E. A. Berry, for plaintiff in error.
John V. Coon, for defendants in error.
OPINION
The first claim of error in this case is the introduction in evidence of the deposition of J. B. Smith. This was at the trial, and the objection to the evidence and the exception taken are as follows:
"To the introduction of said deposition and the evidence therein contained, and to each and every part thereof, the said plaintiff at the time objected, on the ground and for the reason that the same was incompetent and irrelevant; which objection was by the court overruled; to which ruling of the court the said plaintiff at the time duly excepted."
It will be seen from this language that there was only one objection and that this objection embraced the whole of the deposition, although it stated that it was to each and every part thereof. Such an objection we think is hardly sufficient, as some portions of the deposition might properly have been read in evidence. The party objecting should have designated the different parts objected to. Objecting to the whole of the deposition, in the lump, although the statement is "to each and every part thereof," is not sufficient. The particular portions of the evidence of the witness J. B. Smith contained in this deposition are with reference to the horse in controversy, and are as follows: The witness then stated that he had noticed this at other times, and then said: "He is liable to drop dead at any time when driven at speed." These particular portions of the deposition were not objected to on the...
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...and be used on a motion for a new trial. 14 Ency. Pl. and Prac. 903, last paragraph; Schoofield v. Bunton, 20 Colo. 139; Gano v. Wells, 36 Kan. 688; Erwin v. 29 Ind. 95; Krudenier v. Shields, 70 Iowa 428; Jones v. State, 89 Iowa 182; Winslow v. Morrill, 68 Mo. 362; People v. Gall, 149 N.Y. ......
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...of the trial court. Oral testimony may be heard upon such a motion. Schoolfield v. Brunton, 36 P. 1103, 20 Colo. 139;Gano v. Wells, 14 P. 251, 36 Kan. 688. Whether the witness Happ, with or without reason, declined to make an affidavit, is of little consequence, for he was present in court ......
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