101 Tenn. 527 | Tenn. | 1898
This record is before ns-on assignments of error to the action of the trial Judge. During the progress of the trial in the Court below, the plaintiff, over the objection of the defendant, was permitted to read to the jury a deposition which had been taken by the plaintiff without notice, and of the existence of which the defendant and its attorneys were without knowledge until it was offered as a part of plaintiff’s case. It is now insisted that the trial Judge was in error in overruling the objection and permitting the deposition to go to the jury.
While it is clear that this deposition, taken, as it was, without notice or consent, was subject to exclusion upon exception properly made, yet the Court below cannot be placed in error for overruling the objection at the time' and in the form presented. The statute is imperative that ‘ ‘ all exceptions to depositions for want of notice, because not filed in reasonable time, or for other causes going to the admissibility .... shall be made and disposed of before the commencement of the hearing or trial, otherwise they will be considered as waived.” Code (Shannon), § 5661. Such an exception goes first to the Clerk, and it is his duty to act upon it forthwith, “and from his decision an appeal lies to the Chancellor or Judge, to be disposed of before the cause is heard or tried.” Code (Shannon), § 5662. It is apparent that the trial Judge, in the absence of an exception acted
Another assignment of error is that the trial Judge declined two special requests with regard to the plea of the statute of limitations. To make clear this assignment, it is necessary that a brief statement of the pleadings in the cause should be given.
This suit was brought by Harris to recover damages for a personal injury, resulting, as was alleged, from the negligence of the railroad company. In his declaration, after averring that the injury occurred on the 19th of December, 1894, it was alleged that shortly thereafter, “to wit,-', about the — May, 1895,” plaintiff “brought suit for same in the Circuit Court of Hamilton County, Tennessee, against the said defendants, for the sum of $25,000; that on the — day of -, 1895, the said defendant, through its . . . attorneys, removed
To this declaration the pleas of not guilty and of the statute of limitations were filed, the latter being in the following words: “And for further plea defendant says that the cause of action arose more than one year before the bringing of this suit.”
This was the state of the pleadings when, on the trial of the case, the Circuit Judge was requested by the defendant to say to the jury that the defendant had pleaded that the cause of action had accrued more than one year next before the bringing of this suit, and upon this plea the plaintiff had joined issue; so that if they found that the accident which caused the injury did occur • more than one year before the commencement of this suit, then they must find for the defendant. The same view, embodied in somewhat different form, was submitted in another and subsequent request. Both requests were declined, and it is now insisted that there was error upon the part of the trial Judge in so doing. In this state of the pleadings we do not think so. The plaintiff in his declaration, anticipating the plea
We have, then, a case where the plaintiff admits in his declaration that the injury of which he complains occurred more than one year before the bringing of the present suit, and yet, coupling this admission with allegations which, if true, relieve him from the statutory bar, and which the defendant, by its failure to deny, admits to be true. In this condition of the record, we think it apparent that the plea presented an immaterial issue, and the Circuit Judge is not to be put in error for declining to submit it, as specially requested, to the jury.
Judgment affirmed.
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