King v. Ritchie , 18 Wis. 554 ( 1864 )

By the Court,

DixoN, C. J.

If a review of the evidence upon an issue of fact tried by the court is desired, exceptions to the facts found by the judge must be filed as prescribed by the statute. Laws of 1860, ch. 264, sec. 13. In this case there are no such exceptions, and hence we cannot examine the evidence. We can only look into the facts found, and, if they sustain the conclusions of law,' the finding will not be disturbed. As there is no question about the sufficiency of the facts as found by the judge, the case turns upon the exceptions to the admission of evidence.

The first exception is to the admission of the note, on the ground that Ritchie, Newcomb & Co., the indorsers, were not the payees to whose order the note was drawn, and the same had not been indorsed to them. The facts stated in the complaint and not denied by the answer, mate a case fully within the decisions in Cady v. Shepard, 12 Wis., 639, and Davis v. Barron, 13 Wis., 227; and the objection was clearly untenable.

The first deposition of the witness Winslow, taken before justice Havens, was irregular and ought not to have been admitted. The notice of the taking was issued by the justice, instead of being given by the plaintiffs or their attorney, and there was no appearance or other waiver of the strict requirements of the statute on the part of the defendants. The act, Laws of 1861, ch. 39, repeals section 9, chapter 137, of the Revised Statutes, and notice by the party is the only one which can now regularly be given. Upon the point of the repeal see State v. Ingersoll, 17 Wis., 631. But as Winslow was subsequently examined, and his deposition regularly taken before another justice, as we shall proceed to show, and as his testimony is substantially in each, and both depositions were read upon the trial, the error was cured, and the judgment will not be reversed on account of it.

The objection to the last deposition of the same witness, and the depositions of other witnesses taken at the same time, is that the notice for taking them was not properly served. The service was upon Messrs. Henry & Clary, attorneys at Mineral Point. Messrs. Todd and Converse, of Beloit, were the attorneys of the defendants Ritchie, Newcomb & Co., who gave notice of retainer and appearance for them, and subscribed and served their answer. The objection is, that the notice should have been served upon them. The court below overruled the objection, upon the ground “ that it was evident from the papers in the case signed by Henry & Clary as attorneys, and their entire management of the action, in court, that the said Henry & Clary were at all events the agents of the defendants, so as to make the service of said notice good upon said defendants.” Upon inspection of the record sent up in return to the appeal, it appears that there had been a previous trial, and judgment for the defendants, and a new trial granted on motion of the plaintiffs. The judgment that was then entered, was upon motion of Mr. Clary as counsel for the defendants. The bill of fees of the attorneys of the defendants under that judgment was stipulated by Mr. Clary as “ att’y for Ritchie, N. & Co.” and Mr. Wilson as attorney for the plaintiffs. The order granting the new trial was made upon hearing Mr. Wilson for the plaintiffs and Mr. Clary for the defendants. The names of Todd & Converse appear in none of these proceedings. It furthermore appears that service of notices had previously been made upon Mr. Clary without objection. Under these circumstances, we think the court below was right in not rejecting the depositions, although neither Mr. Clary nor Clary & Henry had been formally substituted as attorneys of record. They had so far identified themselves with the record as the attorneys in fact of the defendants, with, it must be presumed, the knowledge and approval of the defendants and of Todd & Converse, that the least they could have done, if they desired to disclaim such relation and compel service upon Todd & Converse, was to return the notice with their reasons, so that the plaintiffs could have proceeded by a notice not liable to such objection. Not having done this, we think, whether Clary & Henry are in strictness to be regarded as attorneys of record or not, the defendants were estopped, as it were, from taking the objection to the depositions when offered at the trial.

Judgment affirmed.