Arnett v. Nall

PREWETT, P. J.,

pro

tem.

After trial in the court below, findings and judgment against the plaintiff were made and filed. The plaintiff, at the opening of his case, offered to read his own deposition taken in another state. Upon objection that the commission issued upon insufficient notice, that the commissioner did not purport to be acting under the commission, and that the interrogatories that accompanied the commission had' not been settled by the court, the court excluded the deposition. This is assigned as error. The plaintiff thereupon moved, without any showing, that the court grant a continuance. This motion was denied. It is claimed that this was an abuse of discretion. The plaintiff then rested his case without introducing any evidence. After judgment the plaintiff moved on affidavit that the court grant him a new trial. The plaintiff himself filed no affidavit on this motion. The only ground urged in support of the motion was that of surprise at the ruling of the court in excluding the deposition and denying a continuance. The motion for a new trial was denied and plaintiff appeals.

[195]

Some of the objections to the deposition appear to be grave, yet it is perhaps unnecessary for the court to determine whether or not they are fatal, since the judgment must be affirmed for other reasons. Conceding that the objections were not well founded and that the deposition should have been admitted, it becomes necessary to inquire whether or not injury was done to the plaintiff. Under the wise constitutional and other provisions that have been injected into our jurisprudence within the last few years, injury is no longer presumed. Unless the facts themselves are such that injury follows as a necessary result,c the aggrieved party must show affirmatively that the obnoxious ruling has injured him. In this case there is no attempt at such a showing. The court excluded certain offered evidence. The plaintiff may or may not have been injured thereby. We do not know what this evidence was nor is there any method whereby we can conjecture it. The plaintiff did not care to be present in person at the trial. This we know from the fact that he attempted to send his deposition. The point often arising that a litigant desired to be present to oversee his own case or defense does not arise in this case. The matter stands before us in all respects as though the deponent had no interest in the case. In other words, it is a mere case of alleged error in the exclusion of evidence.