Steamboat Thames v. Erskine

• Citation: 7 Mo. 213
• Court: Missouri Supreme Court
• Decision Date: 30 September 1841
• Parties: STEAMBOAT THAMES v. ERSKINE & GORE.

7 Mo. 213

STEAMBOAT THAMES

v.ERSKINE & GORE.

Supreme Court of Missouri.

September Term, 1841.

APPEAL FROM THE CIRCUIT COURT OF ST. LOUIS COUNTY.

KING & TUNSTALL, for Appellant. 1st. The court erred in suffering improper evidence to be given to the jury, on the part of the appellees. 2nd. In overruling appellant's motion for a new trial for reasons filed. Mo. Digest, p. 220, §§ 6, 7; Mo. Digest, p. 220-1; McLean, Adm'r of Brockman, v. Thorp, 4 Mo. R. 257; Mo. Digest, p. 221, §§ 13, 15-16-17.

POLK, for Appellee. 1st. That the court below committed no error in allowing the deposition of Josiah G. Sanborn, on the part of the plaintiffs, to be read in evidence to the jury. 2nd. That the court below did right to overrule the motion for a new trial. Campbell & Maison v. Hood, 6 Mo. R. 217; Code of 1835, p. 221, § 17.

TOMPKINS, J.

Greene Erskine and Stephen Gore brought their action against the Steamboat Thames; the judgment of that court being rendered in their favor, the defendant appeals to this court to reverse that judgment.

On the trial of the cause the plaintiffs offered in evidence a deposition to prove the delivery of a trunk at Pittsburg, in Pennsylvania, to the steamboat Thames, to be delivered to Erskine and Gore, the plaintiffs, at St. Louis, in Missouri. This trunk and its contents are the object of the suit. The defendant objected to the reading of the deposition as evidence in the cause; the court overruled the objection, and the defendant took exceptions to this decision.

On the part of the plaintiffs it was testified, that shortly after the arrival of the Thames at St. Louis, the trunk was demanded at the boat by a clerk of the plaintiffs, whose peculiar duty it was to attend to such matters; this witness stated that he and the clerk of the steamboat Thames searched for it on other boats than the Thames, and that it could be nowhere found. This witness, on cross-examination, stated that he did not know when the steamboat landed at St. Louis, but that he first sent for the trunk, and on failure to get it, went for it himself; that all this was done soon after the bill of lading was found on the desk of the plaintiffs; and it being his particular duty to attend to such business, he did not think the bill of lading could have lain long on the desk before it was observed by him. Another witness on the part of the plaintiffs (the same stated by the first-witness to have been sent for this trunk), testified to the same facts as the first witness did.

On the part of the defendant, the deposition of the clerk of the steamboat was read in evidence. In this deposition the clerk states that the trunk was delivered on the bank of the river at St. Louis, in good order, and that he saw it lie there four hours; that as soon as the steamboat arrived at St. Louis, he delivered the bill of lading to one Martin, clerk of the house of Finney, Lee & Co., to which the boat was consigned, in order that it might be delivered over to Erskine and Gore. On this testimony the jury having found a verdict for the plaintiffs, the defendant moved for a new trial, which being overruled, the defendant took exceptions to the decision of the court.

It is assigned for error that the court erred. 1st. In permitting improper evidence to be given to the jury on behalf of the appellees. 2nd. In overruling the appellant's motion for a new trial.

The objections to reading the deposition, as set out in the counsel's brief written and handed to the court after the argument of the cause, are: 1st. That notice to take this deposition was not served on the attorney of record, as required by 6th and 7th sections of the act concerning Depositions. 2nd. Because the commission issued to take this deposition is not in pursuance of the law; and the case of McLean, Adm'r of Brockman, v. Thorp, 4 Mo. R. is referred to in support of the reason. 3rd. Because the deposition is not properly certified by the officer taking it, and authenticated by a clerk of a court of record.

The 31st section of the act to regulate the Practice in the Supreme Court, in appeals and writs of error in civil cases, provides, that no exception shall be taken in an appeal or writ of error to any proceedings in the Circuit Court, except such as have been expressly decided by such court. The object of this provision is so evident that it can hardly be necessary to say that the Legislature intended by it that a party taking the exceptions shall not take his opponent by surprise. In order to carry into effect the provisions of the 31st section of the act, the counsel of the defendant should perhaps have been required in the Circuit Court to assign in his bill of exceptions his reasons for objecting to the reading this deposition in evidence. Several points might have been made in this objection: three indeed are made as above noted. The rules of this court require that counsel shall present before the argument of each case a brief containing a statement of the facts of the cause and the points relied on, &c. This rule was dispensed with in this cause for the convenience of the counsel of the defendant in the Circuit Court, appellant here; and in the argument of the cause in this court, the only reason urged why the deposition should not be read, was that it did not appear from the certificate of the clerk that he was the clerk of a court of record, as required by the 16th and 17th sections of the act concerning Depositions.^(a)

As to the first objection, to reading the deposition, although in my opinion it is improperly urged here, it may be observed that the sheriff's return is, that the notice was served by the sheriff in St. Louis county, on the 19th day of July, 1839, by putting up a copy thereof in the office of the clerk of the Circuit Court, neither the Steamboat Thames nor any attorney of record being found. The pleas of the defendant first filed, and now regularly before this court, show the defendant's counsel for the first time in the Circuit Court on the 10th day of ...