36 Kan. 363 | Kan. | 1887
The opinion of the court was delivered by
This was an action brought by T. C. Hartley and E. P. Mendenhall, before a justice of the peace of Cherokee county, against James Chidester, to recover $116.25, with interest and costs, for an alleged balance due on two certain promissory notes and a chattel mortgage, executed by the defendant to the plaintiffs. After judgment in favor of
The defendant, as a preliminary question, claims that no motion for a new trial was made or filed in the court below. The only motion filed in the court below, which can at all be called a motion for a new trial, reads (omitting the caption) as follows:
“ Come now the plaintiffs in the above-entitled action and move the court to set aside and vacate the verdict of the jury in this action for the following reasons:
“1. Said verdict is not supported by sufficient evidence, but is contrary to the evidence.
“ 2. The verdict is contrary to law.
“ 3. Errors of law occurring at the trial, and excepted to by the plaintiffs.”
The next question to be considered, and the first one raised by the plaintiffs in error, is whether the court below erred, before the trial commenced, in overruling the plaintiff’s exceptions to certain depositions, and erred after the trial commenced in permitting such depositions to be read in evidence. One of the principal objections to the depositions is, that the notice given by the defendant to the plaintiffs of the time and place of taking the depositions did not give the requisite time, as prescribed by law, before taking the same. There were two sets of depositions, and the notice for each set was given in Cherokee county, Kansas, and the depositions were to be taken at the city of Alkali, in Wasco county, Oregon. The first notice was given on November 30, 1883, and the depositions were to be taken on December 10,1883, between the hours of eight o’clock in the forenoon and six o’clock in the afternoon. The other notice was given on March 29, 1884, and the depositions were to be taken on April 8, 1884, commencing at eight o’clock in the forenoon. The statute provides as follows:
“ The notice shall be served so as to allow the adverse party sufficient time, by the usual route of travel, to attend, and one day for preparation, exclusive of Sunday and the day of service.” (Civil Code, §352.)
It is unnecessary to consider any of the other questions presented in this case.
The judgment of the court below will be reversed, and the cause remanded for further proceedings.