Stone v. Crow

• Decision Date: 24 February 1892
• Citation: 51 N.W. 335,2 S.D. 525
• Parties: DUDLEY STONE, Plaintiff and appellant, v. CROW, Defendant and respondent.
• Court: South Dakota Supreme Court

2 S.D. 525

51 N.W. 335

DUDLEY STONE, Plaintiff and appellant,

v.

CROW, Defendant and respondent. South Dakota Supreme Court Appeal from Circuit Court, Lawrence County, SD Hon. Chas. M. Thomas, Judge Reversed Martin & Mason Attorneys for appellant. McLaughlin & McLaughlin Attorneys for respondent. Opinion filed February 24, 1892

BENNETT, J.

This was an action by an indorsee of a negotiable promissory note against its maker. The defendant alleges in his answer that the note was not transferred to the plaintiff for value before maturity and in the ordinary course of business, and sets up counter-claims against the original payee of the note, claiming partial failure of consideration for which the note was given. The action being founded upon a negotiable promissory note alleged to be in the hands of an innocent purchaser for value before maturity, no defenses against the note could be made available unless it could be established that the transfer to the alleged holder was not valid. The allegation of the answer is that “the assignment and endorsement of said note was without consideration, and for the purpose of preventing this court from acquiring jurisdiction over said company, and to defeat the defendant from setting up hip his defenses and counter-claims against it.” This allegation was denied in the reply of the plaintiff.

The issues thus raised present a pure question of fact which is to be determined by evidence. Upon the trial all the testimony consisted of the depositions of George N. Bierce, Dudley Stone, and R. N. King, which were introduced by the defendant, but were taken and procured by the plaintiff. To the introduction and reading of these depositions the plaintiff objected: First, because they had never been filed in the court; and, second, because the fees for the taking of the same had not been paid by the defendant before allowing him to have the benefit of them. These objections were overruled, exceptions were taken, and this ruling of the court is assigned as one of the errors.

The abstract shows that upon the wrapper or envelope inclosing these depositions was the following endorsement: “Received on this 20th day of May, 1890. R. H. Driscoll, Clerk Circuit Court, Lawrence County;” and: “Opened at request of plaintiff’s attorney, this 20th day of May, 1890. R. H. Driscoll, Clerk.” Was this a filing within the meaning of Section 5296, Comp. Laws, which says: “Every deposition intended to be read in evidence on the trial must be filed at least one day before the trial?” The statute (Section 5292) provides that depositions shall be sealed up and indorsed with the title of the cause and the name of the officer taking the same, and by him addressed and transmitted to the clerk of the court, there to remain until opened by the clerk by order of court or at the request of a party (or his attorney) to the action. A paper is said to be on file when it is delivered to the proper officer and by him received to be kept on file. Bouv. Law Diet.; Fulkerson v. Houts, 55 Mo. 302. Filing a paper consists in placing it in the proper official’s custody by the party charged with this duty, and the making of the proper indorsement by the officer. And. Law Dict. In modern practice “the file” is the manner adopted for preserving papers; the mode is immaterial. Such papers as are not for transcription into the records are folded similarly, indorsed with a note or index of contents, and tied up in a bundle. “A file.” Id. The statute quoted above makes it the duty of the officer taking a deposition to seal it up and indorse the title of the case in which it is to be used, and the name of the officer taking it, and then to address and transmit it to the clerk of the circuit court where the action is pending. When this is done, and it is received by the clerk, it is delivered to the proper officer, and placed in the custody of the proper official. The. endorsement of the title of the cause has already been placed upon it, as directed by statute. Nothing more remains, except placing the date of its reception by the clerk, to make it a proper filing. The clerk cannot break the seal of the envelope or wrapper, except by order of the court, or at the request of a party to the action or his attorney. The object of the provision of Section 5297 evidently was to afford adverse parties the opportunity to examine the deposition to be used on the trial of the case, that they might take advantage of objections, if any. they wished to urge. Depositions cannot be used in the trial of a cause upon the same day of their reception, but as soon as received by the clerk of the court they can be opened by him, on request of either party to the action, and the object of this section can be attained. It has been held in the case of mortgages that the filing consisted in presenting the mortgage at the office and leaving it there, and depositing it in the proper place, with the papers in the office. Neele v. Berryhill, 4 How. Pr. 16; Dikeman v. Puckhafer, 1 Abb. Pr. (N. S. ) 32; Harlow v. Birger, 30 Ill. 425. If this is a sufficient filing for so important a paper as a mortgage, it certainly must be for depositions, to be used as testimony in a trial case.

As to the objection that the deposition could not be used by the defendant because the fees for taking it had not been paid by him, we think it clearly untenable. If any fees were due to the officer for taking the depositions, or to the clerk or other officers of the court for services performed, it was a matter for them to raise and not the plaintiff. The ultimate payment of these fees would be a question of costs at the determination of the suit. The papers were properly before the court, and subject to its disposal.

The other point presented is that the evidence was insufficient to justify the findings of the jury on the questions of fact submitted to it. At the threshold of this question we are met by the objection that this court will not review the judgment on account of the insufficiency of the evidence to support it, if there is any conflict in the testimony material to the issue, for the reason that the almost universal rule is that an appellate court will never disturb a verdict if there is a substantial conflict in the evidence. This is unquestionably the rule, but where there is no evidence, or when the verdict is wholly unsupported by evidence, this court should interfere, and grant a new trial in furtherance of the ends of justice. There is a distinction to he made between a preponderance or weight of evidence and a question of no evidence. A jury is, from the very nature of its functions, the rightful and legitimate branch of the court to determine the facts in a...