Oterie v. Vitale , 1913 Pa. Super. LEXIS 401 ( 1913 )

Opinion by

Rice, P. J.,

The principal question that was discussed on the argument of this appeal is based on the fact that the depositions of certain witnesses residing in another state, which were taken on a rule entered by leave of court under the Act of June 25, 1895, P. L. 279, were not taken on the day designated in the notice, but on a later day. It is argued that the giving of due notice of the time and place, when and where the depositions are to be taken, is a requirement which the court cannot dispense with without the consent of the parties, which, of course, is an indisputable proposition. Therefore, the objection that the depositions were taken at a later time than that appointed in the rule entered by leave of court, or in the notice annexed to and made part of such rule, if it be so appointed, is a fatal objection unless it be waived by the opposite party. But it is quite clear that if the latter expressly waives it, the court cannot be convicted of error in giving effect to the waiver and admitting the depositions in evidence. Being an objection which the party may waive, a waiver may be implied from unequivocal acts which clearly show that such was his intention. The power which was formerly held to be inherent in all courts of record, and was expressly recognized and affirmed in the Act of June 16, 1836, sec. 21, P. L. 784, extends to the establishing of such rules for regulating the practice thereof and for expediting the determination of suits, causes and proceedings therein, as in their discretion they shall judge necessary or proper, provided that such rules shall not be inconsistent with the constitution and laws of the commonwealth. A large number and variety of instances, in which rules of court quite as broad as the rule of the court below have been sustained, are cited in Standard Underground Cable Co. v. Johnstown Telephone Co., 26 Pa. Superior Ct. 432; see also Laukhuff’s Est., 39 Pa. Superior Ct. 117; Reznor Hotel Co.’s License, 34 Pa. Superior Ct. 525. As is-shown in these and other cases that might be cited, the fact that the rule requires the party to do something, in order to make his objection to the depositions effective, that he would not have' been compelled to do if the rule had not been made, is not, in itself, conclusive against the validity of the rule. Applying the well-settled principles enunciated in these and other cases, there can be no doubt that the court, by general rule, may prescribe a reasonable time after due notice of the return of a commission to take depositions within which objections to “the form of the execution or return” of the commission shall be specified by exceptions filed, and that a waiver may be implied from the unexplained omission to file such exceptions. In the present case the defendant not only omitted to file exceptions to the return within the time prescribed by the rule of court, but also, when the depositions were offered on the trial, omitted to raise the objection now urged and put his objection upon other specific grounds. The present objection seems to have been raised for the first time after verdict on motion for new trial. Under the circumstances, which are more fully set out in the opinion filed by the learned judge in refusing that motion, the defendant must be deemed to have waived the objections that the depositions were not taken at the time designated in the notice but at a later time.

The sixth assignment of error relates to the admission in evidence of the copy of a letter from the plaintiffs to the defendant dated January 6, 1906, the objection being that it was not written in reply to any • letter from the latter to the former, and therefore must be regarded as merely a self-serving declaration. But it is to be observed that on November 24, 1905, the defendant had written a letter to the plaintiffs in which he claimed to have rightfully paid Russo Bros, for the bananas, and inclosed the latter’s receipt, and that on November 25, the plaintiffs wrote in reply to that letter protesting against the alleged payment to Russo Bros, and insisting on the defendant’s liability to the plaintiffs. The plaintiffs’ letter of January 6, 1906, was, in effect, a repetition of the objection urged in their former letter, and therefore may be truly said to have been brought out by the assertion made in the defendant’s letter of November 24. Therefore, we are unable to see that there was error in admitting the plaintiffs’ letters replying thereto.

The other assignments of error do not require particular notice except to say that they are not sustained.

The judgment is affirmed.