Newell v. Desmond, 74 Cal. 46

Newell v. Desmond

74 Cal. 46 | Cal. | 1887

Temple, J.

We think the court did not err in overruling the objections to the deposition of plaintiff Fay, on the ground that Fay was present in the court when the deposition was read.

The deposition was taken at the instance of defendant under section 2021 of the Code of Civil Procedure, subdivision 1.

It is expressly provided in section 2032 of the Code of Civil Procedure: “If the deposition be taken under subdivisions 2, 3, and 4 of section 2021, proof must be *48made at the trial that the witness continues absent or infirm, or is dead.” Subdivision 5 relates to cases where the oral examination is not required. Subdivision 6 expressly provides that the deposition authorized to be taken by it shall not be used if the presence of the witness can be had. The sole purpose of. enumerating the subdivisions at all, in section 2032, was to provide that the deposition authorized by subdivision 1 could be read without showing the absence of the witness.

The verdict of the jury establishes the fact that the sales made by Cadman were bona fide. As to the necessity of delivery and a continued change of possession under the circumstances, the law is correctly stated in the instructions given by the court.

There was no evidence on the part of defendant that any of the books levied upon ever belonged to Cadman and Fay. Cadman testified for plaintiff that none of the books taken were on hand when the transfer was made, except one set, of the value of forty dollars. The burden of proof on this point was on the defendant. The verdict cannot be disturbed on this ground.

There was evidence which tended strongly to prove actual fraud in both transfers made by Cadman, but this was left to the jury under proper instructions, and their verdict was for plaintiff.

Order affirmed.

Sharrstein, J., Paterson, J., Searls, C. J., McFarland, J., McKinstry, J., and Thornton, J., concurred.