Goodhue v. Grant

1 Pin. 556 | Wis. | 1845

Miller, J.

The plaintiffs in error were defendants in the district court of Green county.

Upon the trial the defendants offered in evidence the deposition of Michael Bennett, which was objected to by plaintiffs, on the ground that the justice’s certificate does not set forth that the deposition was carefuEy read to witness by the justice, or that he read it himself before signing, which said offer was overruled by the court. This is the first error assigned.

By the act concerning testimony and depositions, it is required that the justice shaE annex to the deposition a certificate of the time and manner of taking it; the person at whose request, and the cause or suit for which it was taken, and the reason for taking it; and stating also whether the adverse party attended, and if not, stating the notice, if any, that was given him. It must also state, according to sections 14 and 16 of the same act, that the deponent was sworn to testify the truth, the whole truth and nothing but the truth; that the said deposition was written by the justice, or by the deponent, or by some disinterested person in the presence and under the direction of the justice; and that the deposition was carefuEy read to, or by the deponent, and that it shall then, be signed by the deponent. It must plainly and satisfactorily appear, from the certificate of the justice, that all the requirements of the statute have been fully complied with, and no presumption will be admitted to supply any defect in the taking of the deposition. There ought to be direct proof that the requisitions of the statute have been complied with, of which the certificate of the justice is made evidence. The rule for taking depositions is adopted for the convenience and benefit of the party, and if he does not bring himself within it he cannot complain. The legislature intended that every part or requisition of the rule should be equally important and binding, consequently, the court cannot relax or change it. Bell v. Morrison, 1 Pet. 351; Pettibone v. Derringer, 4 Wash. C. C. 215; United States v. Smith, 4 Day, 121; 2 Pet. Dig. 41. It not appearing that the deposition had been carefully read to or by the deponent, the court decided correctly in rejecting it.

The defendants then offered in evidence the record of the judgment of a justice of the peace of Green county, with the papers connected therewith. Also, the complaint, writ and bond in a replevin suit before the same justice. It did not appear that the record and papers had been first proven, and the offer was rejected by the court. The record or docket of a justice of the peace must be proven before the court can receive it, or take into consideration the question of its admissibility as competent evidence in the cause. The other reasons for-rejecting the offer did not materially apply, until the proper foundation was first laid for the offer. The legal ground not being first laid, the court could not do otherwise than reject the offer.

The third error assigned, that the court refused to charge the jury as is requested in the first, second and third points, is not properly presented for the consideration of this court. Prom the bill of exceptions, it does not appear what the instructions were. The rule is, that a court of error presumes a judgment and proceedings to be correct, until error is made to appear. For this reason it is the duty of the plaintiff in error to have his case so presented to this court that we can be enabled to detect the error alleged, and dispose of the case understandingly and with proper certainty.

It is ordered that the judgment of the district court be affirmed, with costs.