Kennelly v. Northern Pacific Railway Co.

170 N.W. 868 | N.D. | 1918

Christianson, Ch. J.

The defendant filed exceptions in writing to a certain deposition taken by the plaintiff. The questions arising on such exceptions came on to be heard before the court before the commencement of the trial, upon the motion of plaintiff’s attorneys. The court sustained the exceptions and plaintiff appeals.

In our opinion no appeal lies from the ruling or order in question. The right of appeal depends on the statute; and under our statute an appeal may be taken to this court from the following orders only;

“1. An order affecting a substantial right made in any action, when such order in effect determines the action and prevents a judgment from which an appeal might be taken.

“2. A final order affecting a substantial right made in special proceedings or upon a summary application in an action after judgment.

“3. When an order grants, refuses, continues or modifies a provisional remedy, or grants, refuses, modifies or dissolves an injunction or refuses to modify or dissolve an injunction, whether such injunction was issued in an action or special proceeding or pursuant to the provisions of § 8074 of this Code; when it sets aside or dismisses a writ of attachment for irregularity; when it grants, or refuses a new trial or when it sustains or overrules a demurrer.

“4. When it involves the merits of an action or some part thereof; when it orders judgment on application therefor on account of the frivolousness of a demurrerj answer or reply on account of the frivolouaness thereof.

“5. Orders made by the district court or judgé thereof without notice are not appealable; but orders made by the district court after a hearing is had upon notice which vacate or refuse to set aside orders previously made without notice may be appealed to the supreme court when by the provisions of this chapter an appeal might have been taken from such order so made without notice, had the same been made upon notice.” Comp. Laws 1913, § 7841.

It seems entirely clear that the classes of order sought to be reviewed on this appeal do not fall within any of the orders enumerated. It is in effect merely a ruling upon evidence. Such rulings or orders are not appealable. See Hulett v. Matteson, 12 Minn. 349, Gil. 227; State v. Arns, 72 Iowa, 555, 34 N. W. 329; Neacy v. Thomas, 148 Wis. 91, 133 N. W. 580; Richards v. Burden, 31 Iowa, 305. It is true the respondent has not moved to dismiss the appeal. But it is equally true that where it clearly appears “that the appellant has no right of appeal in the given case, the court will dismiss the appeal on its own motion, whether the point is raised by counsel for the appellee or not.” 2 Enc. Pl. & Pr. 338, 339; 4 C. J. 589-592.

While the question is not necessarily involved, we deem it proper to say that we believe that if the order appealed from was subject to review •on this appeal, it should be affirmed. The instant action is one for damages for tbe death of Luigi Nardella. Tbe deposition suppressed' purports to be tbe deposition of tbe widow of the deceased. We have-before us on this appeal tbe exceptions, tbe affidavit of defendant’s attorney tendered in support of tbe exceptions, tbe deposition, and tbe order of the court suppressing tbe deposition. Tbe answers in tbe deposition are all in tbe Italian language. In tbe order suppressing tbe deposition, tbe court states that be called an interpreter who could read and interpret tbe Italian language; and that such interpreter advised tbe court that be could not find that tbe deposition was signed; and that be could not find it stated anywhere in tbe deposition that tbe witness was illiterate and unable to sign her name thereto; and that he could not find that the deposition was properly certified, to by tbe officer that took it; and could not find what officer did take it. So far as tbe statement that tbe witness did not sign tbe deposition, is concerned, this does not rest alone on tbe statement in tbe court’s order. Tbe deposition itself is before us, and an inspection clearly shows that it is not signed by tbe witness.

It is stated in tbe defendant’s affidavit "that it was ■ impossible to find someone in Italy who would or could attend tbe taking of this deposition in its behalf; there being no time to communicate and tell 1hem what tbe lawsuit was about and what examination of tbe witnesses should be made.” It is further averred in tbe affidavit that the Italian consul located at Denver, Colorado, has communicated with tbe defendant and claims to be authorized by tbe widow of tbe deceased to act in her behalf in the administration of tbe estate of said deceased, and to take all steps necessary to liquidate any claims she may have against tbe defendant railway company by reason of tbe death of her husband.

Section 1899, Compiled Laws 1913, provides: “The deposition must be written by tbe officer, or in. bis presence by tbe witness, or some disinterested person; and must be subscribed by the witness

Appellant contends that this statute, notwithstanding its mandatory language, is only directory, and cites F. A. Patrick & Co. v. Nurnberg, 21 N. D. 377, 131 N. W. 254, in support of this contention. Tbe question of tbe necessity of tbe signing of a deposition by tbe witness was not involved in tbe Numberg Case. It will be noted that tbe Nürn-berg Case cites Cyc. and tbe Encyclopedia of Evidence. Both of these f

authorities deal with the question whether an unsigned deposition is admissible in evidence.

Cyc. says: “The failure of the witness to sign or subscribe his deposition after its reduction to writing requires its rejection. Under some circumstances, however, . . . ’ the deposition may be admitted although not signed.” 13 Oye. 939. And the Encyclopedia of Evidence, says: “The witness should sign his deposition [and the court may compel him to do so]. Unsigned depositions have usually been rejected. But, on the other hand, there are numerous precedents, especially in equity, and in the absence of positive statutes, of the admission in evidence of depositions not signed by the witnesses, but properly certified by the examining officers.” 4 Ene. Ev. 432. See also 7 Standard Proc. 326.

; Inasmuch as a determination of the question is in no maimer in-volv'd in this case, we refrain from expressing any opinion as to whether under any, and if so under what, circumstances an unsigned deposition may be admitted in evidence in this state.

Appeal dismissed.