Wheeler v. Smith

13 Iowa 564 | Iowa | 1862

Wright, J.

1. The court did not err in permitting plaintiff to read as evidence the deposition of the witness, Moses, the same having been taken at the instance of defendant. Pelamourges v. Clarke et al., 9 Iowa, 1; Crick v. McClintic, 4 G. Greene, 290.

2. We give no attention to the errors assigned, so far as they relate to instructions given or refused, and the reception of a letter, said to have been written by plaintiff to an agent, for the reason that none of these matters are so identified by the bill of exceptions or otherwise as to bring them properly before us. (This action was commenced in 1857.) Harmon v. Chandler, 3 Iowa, 150; Lewis v. Detrick, Id., 316; Greene & Stone v. McFadden & Co., 5 Id., 549.

3. The action was replevin —• plaintiff died, and her heir, and executrix, was substituted. It seems that during the argument defendant’s counsel insisted that the property in dispute had not been included in the inventory of the property of decedent, as returned by the executrix. Plaintiff claimed that it was included,'and proposed to show that the property therein included, was the proceeds of the sale of the property in dispute. This was objected to, upon the ground that the testimony was closed, and that it was not competent to thus explain the record. The objection was overruled, and the testimony received. In this ruling we see no such error as to justify a reversal of the cause. The time of receiving the testimony was within the discretion of the court, and there was no abuse. The explanation was entirely competent.

Affirmed.