B. F. Sturtevant Co. v. Sullivan ( 1897 )

Mr. Justice Waterman

delivered the opinion of the Court.

A deposition read in evidence by the plaintiff is said by appellant to have been opened before the trial; this, it is alleged, was done without any order of court. Upon the trial the defendant objected to the reading of the deposition, on the ground that the same was opened and removed from the files by the plaintiff’s attorney without leave of court. If the plaintiff’s attorney did as was charged in the objection, he was guilty of a contempt of court, and the defendant might, and may now, move to have him dealt with therefor.

If we were to presume that the charge contained in the objection is well founded, we should conjecture, from tire action of the court, that the deposition was opened under some order of court not here shown. As it is, there is nothing in the record showing that the deposition was opened or removed from the files by the attorney of the plaintiff; such fact could be made to appear only by a bill of exceptions. The bill of exceptions does not so show.

The filing by appellee .of a certified copy of a general order for the opening of depositions does not bring such order before, us; that can be done only by a bill of exceptions.

We find no error as to the admission or rejection of evidence, or any such as to the giving or refusal'of instructions as would justify the reversal of the judgment.

The granting of leave to file additional pleas is within the discretion of the court. The refusal of leave to plead the statute of frauds is seldom held to be an abuse of discretion, and was not in this case.

W e are not called upon to say that the preponderance of the evidence was with the plaintiff; we simply find that the verdict was not so manifestly opposed to the evidence that it must be set aside.

The judgment of the Circuit Court is affirmed.