Southern Ry. Co. v. Harris

• Citation: 47 S.W. 1096,101 Tenn. 527
• Parties: SOUTHERN RY. CO. v. HARRIS.
• Decision Date: 22 November 1898
• Court: Tennessee Supreme Court

47 S.W. 1096

101 Tenn. 527

SOUTHERN RY. CO. v. HARRIS.

Supreme Court of Tennessee.

November 22, 1898

Appeal from circuit court, Hamilton county; Floyd Estill, Judge.

Action by John Harris against the Southern Railway Company. Judgment for plaintiff. Defendant appeals. Affirmed.

Cook Swaney & Cook, for appellant.

Rutledge & Murray, for appellee.

BEARD J.

This record is before us on assignments of error to the action of the trial judge. During the progress of the trial in the court below, the plaintiff, over the objection of the defendant, was permitted to read to the jury a deposition which had been taken by the plaintiff without notice, and of the existence of which the defendant and its attorneys were without knowledge until it was offered as a part of the plaintiff's case. It is now insisted that the trial judge was in error in overruling the objection, and permitting the deposition to go to the jury. While it is clear that this deposition, taken, as it was, without notice or consent, was subject to exclusion upon exception properly made, yet the court below cannot be placed in error for overruling the objection at the time and in the form presented. The statute is imperative that "all exceptions to depositions for want of notice, because not filed in reasonable time, or for other causes going to the admissibility, *** shall be made and disposed of before the commencement of the hearing or trial, otherwise they will be considered as waived." Shannon's Code, § 5661. Such an exception goes first to the clerk, and it is his duty to act upon it forthwith "and from his decision an appeal lies to the chancellor or judge to be disposed of before the cause is heard or tried." Id. § 5662. It is apparent that the trial judge, in the absence of an exception acted upon by the clerk and carried up by appeal, was without jurisdiction to entertain the motion to exclude the deposition in question grounded as it was upon a fact going to its admissibility. The surprise of the defendant company at the sudden discovery of this deposition, if an application had then been made to the court, would have afforded sufficient reason for a withdrawal of the case from the jury, and for its continuance, in order that a statutory exception might be made; yet it is not sufficient to authorize us to reverse the cause, when the objection came at a time and in a manner not authorized by the statute.

2. Another assignment of error is that the trial judge declined two special requests with regard to the plea of the statute of limitations. To make clear this assignment, it is necessary that a brief statement of the pleadings in the cause should be given. This suit was brought by Harris to recover damages for a personal injury resulting, as was alleged, from the negligence of the railroad company. In his declaration, after averring that the injury occurred on the 19th of December, 1894, it was alleged that shortly thereafter, "to wit, about the -- May, 1895," plaintiff "brought suit for same in the circuit court of Hamilton county, Tennessee, against the said defendants, for the sum of $25,000; that on the -- day of --, 1895, the said defendant, through its attorneys, removed said suit to the circuit court of the United States for the Eastern district of Tennessee, at Chattanooga, where and when, on the 10th of April, 1896, the plaintiff was called out, in default of appearance, and the said suit was dismissed on defendants' motion; *** that the cause was not tried on its merits" in either of said courts. The present suit was instituted just 16 days after this order of dismissal. To this declaration the pleas of not guilty and of the statute of limitations were filed, the latter...