54 Wis. 306 | Wis. | 1882
This case has been here twice before. 42 Wis., 417; 48 Wis., 424.
1. Is there evidence sufficient to support the verdict? Beyond question the learned counsel is correct in claiming that there were several suspicious circumstances connected with the transfer of the property in question from the son to the mother. Were we sitting as jurors on the facts, we should probably be inclined to hold with him. We have no time to go intoan analysis of the testimony, and an incumbrance of the reports for that purpose would be of no practical benefit to any ©ne, even if it would be more satisfactory to the parties. From a careful reading of the testimony we think there was sufficient evidence to 'support the verdict. Whatever may have been the rule at common law, the statute of this state makes the question of fraudulent intent in the transfer of personal as well as real property a question of fact for the jury, and not of law for the court. Hyde v. Chapman, 33 Wis., 392; Barkow v. Sanger, 47 Wis., 500; Mehlhop v. Pettibone.
2. Was there any error in refusing to suppress the depositions? The depositions were not taben on commission, but were taken before an officer in Oakland, California, on oral interrogatories, in pursuance of notice in writing previously given. The only grounds urged for suppression were, that the answers to several of the cross interrogatories were evasive, and that in some instances the witness had wholly failed to answer the point in the' interrogatory. The statute requires the officer taking the deposition to insert therein every answer or declaration of the witness which either party requires to be inserted; and, in depositions taken by oral interrogatories, every interrogatory so required. Section 4087, R. S. The manner of suppressing depositions is regulated by section 4091, R. S. Section 4092, R. S., provides that “every objection to the competency of the witness, or to the propriety of any question put to him, or the admissibility of any testimony given by him, may be made when the deposition is produced, in the same manner as if the witness were personally examined on the trial, and without being noted upon the deposition, unless the objection is to the form or order of a question, when the objection must be noted in the deposition before it is answered.” This section authorizes an objection to be taken for the first time at the trial to an inadmissible answer to an interrogatory; but we do not think the whole deposition should be suppressed merely because some of the answers are not as full or direct as they might have been. This is especially true in regard to depositions taken, as these were, on oral interrogatories.
When depositions are so taken, parties are expected to be
The defendant excepts to so much of the charge as states the following proposition of law as applicable to the facts in this case: “It has been claimed here, on the'part of the plaintiff or defendant,, that at the same time the farm on which this stock was, was sold. Now I must say to you that, if the party took possession of the farm, it would not be evidence of a want of change of possession that the property remained on the farm; because, in taking possession of the farm and the stock upon it, the fact that the stock was there and still remained there, providing the purchaser took possession of tbe farm and the stock, there would be no necessity of removing it from the land; but you must examine all the circumstances, all the surroundings, and you may bring to your aid in determining this question other transactions between these same parties, — the transaction of the purchase of the land, the giving of a mortgage, its cancellation, all the other surt'ounding circumstances,- — and determine this question I have submitted to you.” But we think this portion of the charge was, to that extent, a fair presentation of the case to the jury. If the defendant desired to have instructions more definite, lie should have so requested. This court has often held that a failure to so request is a waiver of any exceptions because they are not given. Besides, the court had already fully instructed thé jury as to the presumptions of law in favor of the defendant.
The defendant also excepts to so much of the said charge as states the following proposition as applicable to the facts
By the Court. — The judgment of the circuit court is affirmed.
This case was held on a motion for a rehearing, and will be reported as of May 10, 1882.