Lepper v. Chilton

• Decision Date: 30 September 1841
• Citation: 7 Mo. 221
• Parties: LEPPER v. CHILTON.
• Court: Missouri Supreme Court

7 Mo. 221

LEPPER

v.CHILTON.

Supreme Court of Missouri.

September Term, 1841.

Where the objection to depositions on the ground that there is no proof that the witnesses are not within the process of court is not made until they are offered in evidence, the plaintiff may be allowed to remove that objection by proof.

ERROR TO ST. LOUIS CIRCUIT COURT.

DARBY, for Plaintiff. 1st. That the Circuit Court erred in permitting the depositions to be read in evidence, because the defendant below had no notice of taking the same, as required by the statute. 2nd. That the Circuit Court erred in permitting the plaintiff below to offer evidence to the court pending a motion made to reject said depositions, as to the residence of the witnesses whose depositions were read, after the plaintiff had closed his case. 3rd. No evidence whatever was given to the court to show that the defendant was a non-resident, to warrant the serving a notice to take said depositions on his attorney. 4th. That the depositions themselves contain hearsay evidence, and should have been rejected on that ground. 5th. The defendant was not identified in any evidence offered to the court. 6th. The damages are excessive, and are not sustained by any evidence offered, and that the Circuit Court erred in overruling the motion for a new trial. Elliot v. Bobb, 6 Mo. R. 323; Boyce v. Anderson, 2 Peters' R. 150; Kean v. Newell, 1 Mo. R. 755; March v. Howell, 1 Mo. R. 138; Morton v. Reeds, 6 Mo. R. 64; 2 Mo. R. 189, Montgomery v. Farrar.

SKINKERS, for Defendant. The only questions to be considered by this court are whether, 1st. The verdict was against evidence, or the weight of evidence, and, 2nd. Whether the court erred in allowing the witness at that stage of the proceedings to prove the residence of the witnesses whose depositions had been read. As to the first point, the opinion of the court as frequently expressed at the present term, is cited. Upon the second, the court is referred to 1 Starkie's Ev 92; Grisley's Eq. Ev. 236.

NAPTON, J.

This was an action of assumpsit brought by the defendant in error against Lepper, to recover damages for the breach of a special contract between the parties. The bill of exceptions presents the following state of facts. The defendant in error, Chilton, on his way from Virginia to this State, reached Cincinnati, on the morning of the 16th of May, 1840, and applied to Lepper, the master of a steamboat then lying at the wharf, for a passage on his boat for himself, his family, slaves, &c. The price was agreed upon between Lepper and Chilton, or his agents, and the plaintiff in error agreed and promised that his boat should leave the port of Cincinnati that evening, Chilton having represented to him, that upon no other terms would he consent to ship his slaves on the said boat. Repeated conversations were had between the captain and Chilton, or his agents, in all of which repeated assurances were given by Lepper that the boat would leave that evening. The fires were accordingly started and steam raised, as if for immediate departure, and the slaves of Chilton were transferred to the boat of Lepper. The boat did not start until the ensuing day, and during the night one of Chilton's slaves escaped, in the recovery of which he expended one hundred and ninety-five dollars. Verdict and judgment was for the plaintiff Chilton, and motion for a new trial made and overruled. On the trial, the plaintiff offered in evidence several depositions, to the reading of which depositions defendant objected on the ground that it did not appear but that the witnesses whose depositions were taken, were within the reach of the process of the court. Pending this motion to exclude the depositions, the court allowed the plaintiff to prove that fact, and thereupon overruled the defendant's motion.

To reverse the judgment below, the plaintiff in error relies on the following points: 1st. The plaintiff in error objects to the...