Owens v. Peyton

70 Mo. App. 50 | Mo. Ct. App. | 1897

Ellison, J.

Plaintiff instituted this action on a claim of commission as a real estate agent on the sale of some land belonging to defendants. The judgment below was for defendants. No objection is made by the appealing plaintiff to any action of the court save as to its refusal to quash depositions taken by defendants in the state of Virginia and its refusal to grant a new trial on account of the verdict being against the evidence and instructions of the court.

Dtay oTtawng: adjournment.' The first objection being in our opinion sufficient to authorize a reversal we need not examine into the second. The notice was to take depositions between the hours of 8 and 6 o’clock Qn the nint]l of March, 1896. The deposition taken was certified as having been taken on the eighteenth of March, the justice of the peace taking them having inclosed in brackets the following entry in the deposition: “(The taking of these depositions has been adjourned from the ninth day of March, from day to day by reason of bad weather.)” There was no appearance by plaintiff at the place appointed at the time the deposition was taken and he has therefore not waived any right he has by reason of the nonobservance of "the day appointed. There is nothing in the depositions or certificate of the officer to show that any proceedings were had on the day named in the notice. Proceedings should have been begun on the day. Fox v. Carlisle, 3 Mo. 197. Besides it is evident from the face of the deposition and certificate that there was no entry of adjournment each day. The entry above set out is evidently one made when the deposition was taken showing what had been done on the preceding day, whereas if there was cause for adjournment the entry should have been made of each day’s proceedings. Bracken v. March, 4 Mo. 74.

The judgment will be reversed and cause remanded.

All concur.