83 Ind. 226 | Ind. | 1882
The principal question submitted to the jury in the court below, upon the pleadings and evidence of the respective parties, was as to the character of an instrument executed to the appellant by the appellees Oliver P. and America Rooker. The former was the defendant below, and contended there, as here, that it was an absolute deed; while the latter insisted that, although in form absolute, it was in fact a mortgage.
The appellant moved to suppress parts of the deposition of Milford H. Vest, a witness for the appellees. This motion was overruled, and exception reserved. It is said by counsel for appellees, that the question is not properly presented, for the reason that the appellant did not object to the reading of the deposition on the trial; and we are referred to the cases of Owen v. Phillips, 73 Ind. 284, and Indianapolis, eta., R. W. Co. v. Anthony, 43 Ind. 183, but we are unable to find anything in them sustaining counsel’s position. Where a party moves to suppress parts of a deposition before trial, and his motion is overruled, and exception is then reserved, it is not necessary to renew the objection when his adversary offers the deposi
Appellees contend that if the testimony was incompetent, there was still no material or available error in admitting it, because the same fact was proved by the testimony of other witnesses. We can not assent to this proposition. It may, perhaps,be true that where the conflict in the evidence is very slight, or where there is no conflict at all, or where the mat
Other questions are discussed, but we deem it unnecessary to consider them, as the case must be again tried.
Judgment reversed, with instructions to sustain the appellant’s motion for a new trial.