Kelly v. Martin

53 Kan. 380 | Kan. | 1894

The opinion of the court was delivered by

HortON, C. J.:

It is alleged that the court erred in suppressing the deposition of F. B. Gifford, a material witness for the defendants below. The case was continued from time to time, and set for trial on the 29th of May, 1890, but not called for trial until June 9, at 2:55 o’clock p. m. Thereupon the plaintiff below filed a motion to suppress the deposition. The court took up and heard the motion before the introduction of any evidence, and sustained the same. Exceptions were taken. The trial then proceeded, before the judge without a jury.

It is insisted that the deposition was properly suppressed, because the justice of the peace, when the action was pending before him, had suppressed the deposition, and, also, because it was not taken at the time and place fixed in the notice, and no legal reason for the adjournments is shown. The written notice to take the deposition specified that it would “be taken at the office of David P. Howard, in the city of Denver (910 Sixteenth street), in the county of Arapahoe, in the state of Colorado, on Wednesday, the 7th day of November, 1888, between the hours of 8 a. m. and 6 p. m., and that the taking of the same would be adjourned from day to day, between the same hours, until the deposition was completed.” It appears that the notary public was present at the time and place named in the notice for taking the deposition. The attorney for the defendants appeared, but no one appeared for the plaintiff below. The attorney for the defendants below requested the notary public to adjourn the taking of the deposition until the next day; and on the next day the defendants again appeared by their attorney, and the deposition was adjourned to the 9th. Adjournments were taken from day to day thereafter, at the instance of the attorney for the defendants, until the 14th day of November, 1888. The deposition was then taken. No one appeared then, or at any other time, for the plaintiff.

The statute provides: “ The examination may, if so stated in the notice, be adjourned from day to day.” The notice given stated that “the taking will be adjourned from day to day.” It was decided in Babb v. Aldrich, 45 Kas. 218, that where a deposition shows that the notary public adjourned at the request of the attorney of the party taking the deposition, a sufficient reason for the adjournment is shown. If an attorney had appeared for the plaintiffs below at the time and place of taking the deposition and objected to an adjournment, probably the deposition or certificate of the notary ought to have shown affirmatively more fully the reasons for the several adjournments, but a notary has the power to adjourn from day to day at the request of the attorney taking the deposition. Such an adjournment cannot be had for the purpose of annoying the opposing party or his attorney, or of causing unnecessary expense or delay. It is not claimed or shown that any injustice to any party was done by the adjournments, or that the plaintiff was prevented thereby from being present to see the manner of proceeding by the party, the officer, and the witness, or was deprived of the benefit of cross-examination. Had the notice prescribed that there would be no adjournment in the taking of the deposition, unless necessary, and nothing was said in the deposition about the attorney of the party being present at the time of the adjournments from day to day, a stricter rule would prevail.

The ruling of the justice of the peace to suppress the deposition was not conclusive upon the appeal. In such a case, the excepting party has the right to the opinion of the district court as to the notice and the sufficiency of the deposition. The trial court found, in this case, that I). B. Ellis, who signed the written lease for the Prairie Lumber Company, had no authority so to do; but ruled that, the lease having been executed in the presence of F. B. Gifford, the general agent or manager of the Prairie Lumber Company, and with his knowledge and consent, the company was liable for the rent during the lifetime of the lease. If the Kellys, who carried on business in the name of the Prairie Lumber Company, were nonresidents and out of the state, and E. B. Gifford was their general agent or manager at Garden City, having full authority to transact and carry on all their business at that city, then a lease executed in his presence and with his knowledge and consent, and accepted by him, would bind his principals. In the deposition which was suppressed, Gifford testified that he “was absent from Garden City when the lease was signed, and never saw the lease.” His deposition further shows that he supposed the lease was to be for one year only, with the privilege of five years. If, as testified to upon the trial, Gifford was present when the lease was written, and had it in his hands and handed the same to Ellis, directing him to make a copy for the plaintiff, then the copy was properly received in evidence to connect Gifford with the lease, and to show that he had full knowledge thereof, and consented to the same.

A party cannot split up his cause of action into several causes of action, in order to give a justice of the peace jurisdiction ; but, in an action upon a lease to recover rent, a cause of action accrues when any part of the rent is due or unpaid. The judgment of the district court will be reversed, and the cause remanded.

All the Justices concurring.