Nevitt v. Crow

• Decision Date: 14 March 1892
• Parties: NEVITT v. CROW.
• Court: Colorado Court of Appeals

29 P. 749

1 Colo.App. 453

NEVITT v. CROW.

Court of Appeals of Colorado

March 14, 1892

Error to district court, Arapahoe county; OLIVER B. LIDDELL, Judge.

Action by Clara E. Nevitt, late Clara E. Troth, against Henry Crow. Judgment for defendant. Plaintiff brings error. Affirmed.

Wells, Macon & Furman, for plaintiff in error.

Oscar Reuter, for defendant in error.

BISSELL J.

The sale of the Glenarm Hotel by Crow, the defendant in error led to this suit by Troth to recover commissions which he claimed to have earned as a broker. The transaction occurred early in 1889. Crow was then attempting to sell the hotel and had put it on the market at a definite price. Troth was the lessee of the property in possession. Both the contract and the performance were put in issue. It will not be useful to discuss the evidence, since none of the errors assigned and relied upon in the argument suggest any questions which necessitate its consideration. What is chiefly depended on to reverse the case is the action taken by the court in suppressing Troth's deposition. The plaintiff proceeded in the first instance to take the evidence on a two-days notice, under an order which, if regularly obtained, would make this notice legal. It appeared that on the presentation of an affidavit bringing the case within the provisions of sections 341, 342, ^[1] Code 1887, the court made this order without notice to the other party. The record is silent as to just what the court did on the motion to suppress for this irregularity, but leave was granted to retake the deposition. What was done under this order need not be considered, because this deposition is not in the record. In the mean time the plaintiff Troth died, and his widow was substituted as plaintiff. It was then insisted that the original deposition could be used, because the court had made no definite order removing it from the files. The defendant then attacked the deposition by another motion, and assigned other departures from the statutory regulations. On this hearing it was made evident that the plaintiff had sent written interrogatories to the notary, who had put the questions to the witness, reduced the answers to writing, and in this manner had completed the deposition. The motion was granted, and this evidence was not permitted to be used. This is assigned for error. In view of the conclusions arrived at it is scarcely necessary to decide whether it should have been suppressed for this last-named irregularity, since it was properly rejected. While no cross error has been assigned attacking the action of the court in this particular, it would be folly to be astute to find reasons to sustain it. Should the case be reversed, the court would, on a renewal of the motion, be compelled to hold that the deposition was not properly taken. The first order was entered without any notice of the motion upon which it was based. It has been seriously contended in argument that the statute concerning the taking of depositions evidently contemplates the entry without notice, of an order to shorten the time within which the party applying may proceed, since to hold otherwise would sometimes operate to prevent the obtainment of the specific relief contemplated. This argument ab inconvenienti is no response to the absolute provisions of sections 371 and 372 of the Code of 1887, as they have been construed by the supreme court. They definitely provide that every order entered by the court, otherwise than during the progress of a trial, must be made upon motion, of which notice must be given. They have been repeatedly construed, and have universally been held to be mandatory, and all orders entered otherwise than upon motion and notice have been adjudged to be irregularities for which a cause will be reversed. Cates v. Mack, 6 Colo. 401; Mallan v. Higenbotham, 10 Colo. 264, 15 P. 352; Hughes v. McCoy, 11 Colo. 591, 19 P. 674. Since the order shortening the time to take Troth's deposition was obtained without notice, it was irregularly entered, and the original motion to suppress the deposition should for that reason have been sustained.

Whether the action which the court took in suppressing it upon the motion subsequently filed was based upon a reconsideration of this question cannot be learned from the record. But the motion should have been granted, even upon the grounds then stated, because the deposition was not taken in accordance with the statute regulating the manner of taking depositions on a commission. If the deposition of a witness in the state living outside of the county is to be taken...