11 Ind. 55 | Ind. | 1858
The complaint alleges that Whitesel, who was the plaintiff, on the 10th of January, 1854, at Tipton, delivered to the Peru and Indianapolis Railroad Company seventeen pair of deer hams, three whole deer, sixty-five-rabbits, and five dozen squirrels, all in good order, and, in-
The defendants answered by a special denial. The issues were submitted to the Court, who found for the plaintiff, and over a motion for a new trial there was judgment, &c.
The defendants, at the proper time, moved to suppress a deposition taken before Conklin, a notary, at his office in Cincinnati, Ohio. The deposition purports to have been taken pursuant to notice; but no commission was issued to the officer before whom it was taken. The motion was overruled, and it was read in evidence.
We have a statute which says that where a deposition is to be taken out of the state, the clerk shall, at the request of the party who designs taking it, issue a commission to the officer designated, &c. 2 R. S. p. 87, § 260. This rule of practice seems to be imperative. The commission' to the non-resident officer is a statutory requirement, and without it, he has no authority to take the deposition. But there is another reason why the motion to suppress should have been sustained. The notary, in his certificate, omits to say whether or not the adverse party attended. Id. § 257.
During the trial, the plaintiff produced one Newton J. Jackson, and by him offered to prove the consolidation as
No doubt the company’s record book, had it been produced, would have been received as the best evidence; but the point of inquiry is, was she bound to produce it? The code provides that “the acts and proceedings of corporations may be proved by a sworn copy of the record of such acts and proceedings: the oath shall be made by the person having the legal custody, and shall state that such transcript is a true and full copy of the original,” &c. Id. p. 93, § 284. The reason for this enactment may be found in the inconvenience that would result from the removal of such records, especially if they were wanted in two or more places at the same time. Their non-production, in this instance, was, in our opinion, insufficient to authorize the parol evidence.
Again, the plaintiff, on the trial, offered in evidence a bill of lading which purports to embrace the property described in the complaint, was executed by an agent of the company, and is, in effect, as follows:
“ Tipton, January 10th, 1854. Received of David Whitesel, in apparent good order, to be transported on the Peru and Indianapolis Railroad, the under-named articles, marked, &c., which we promise to deliver without unnecessary delay, in like good order, subject, to the agreement now made and hereinafter expressed, for Rhodenstein & Co., at the regular station in Cincinnati, on payment of freight as per tariff of said company, and the presentation of this receipt,” &c.
The Court, over the defendants’ objection, admitted the evidence. Still its admission cannot be assigned for error; because the grounds of objection do not appear to have been pointed out in the Common Pleas. But the appellant insists that the evidence thus admitted at once shows
As the case stands upon the record, the plaintiff, in our opinion, has no right of action; and the judgment must, therefore, be reversed.
Per Curiam. — The judgment is reversed with costs. Cause remanded, &c.