41 App. D.C. 353 | D.C. Cir. | 1914
delivered the opinion of the Court:
1. The first error assigned relates to the denial of the motion in arrest of judgment.
Assuming, for the purposes of the argument,. that the cause of action is defectively stated in the declaration, no exception was taken to it on that ground, and hence no opportunity offered for its amendment, had plaintiff been so advised. “Upon motion in arrest of judgment, the plaintiff is entitled to every intendment of law that can be reasonably made in support of the verdict. Everything that the defendant could object to will be presumed to have been made and urged at the trial, and it must be intended that they were overruled.” Schwartz v. Reesch, 2 App. D. C. 440, 446.
It is only where no cause of action is stated at all that the defect is not cured. Chandler & T. Co. v. Norwood, 14 App. D. C. 357, 362. It is not necessary to determine whether the declaration ■ stated a cause of action so defectively or inaccurately as to be subject to a demurrer, as none was presented. It is sufficient to say that it at least stated a cause of action in some form, and the objection in the form of a motion in arrest of judgment is not maintainable.
2. The remaining assignments of error have been argued together, as they all relate to the exclusion of the paper offered by defendant as a copy of the missing or destroyed receipt.
There was no error in refusing to let the paper be produced as evidence.
It is unnecessary to review the cases cited on behalf of the appellant; they are not applicable to the question as here presented. The receipt was not executed in duplicate, nor was a counterpart or copy made with the knowledge or consent of the plaintiff. In fact, both he and his wife, after having been shown the paper when testifying, denied that it was a true copy, jit was nothing more than a self-serving memorandum made by
A or does it appear that it was needed to he used by the j witness to refresh his memory, for he said that he had a distinct recollection of the contents of the paper, and proceeded to state the substance of the receipt from an unrefreshed memory. Gurley v. MacLennan, 17 App. D. C. 170, 179; Sechrist v. Atkinson, 31 App. D. C. 1, 5; Vicksburg & M. R. Co. v. O’Brien, 119 U. S. 99, 102, 30 L. ed. 299, 300, 7 Sup. Ct. Rep. 118. What has been said renders discussion of the third as-1 sigument unimportant.
The judgment is affirmed with costa. Affirmed.
A petition for a rehearing was overruled February 2, 1914.