DOANE
v.
GLENN
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A party waived its objections to the admissibility of a deposition by failing to raise them when the deposition was taken or by motion before trial began, instead waiting until trial was in progress. The Supreme Court held that such procedural objections must be timely raised or are deemed waived, and reversed the lower courts' exclusion of the deposition as an error that violated principles of good faith and prevented surprise to the opposing party.
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Mr. Justice SWAYNE,
having stated the case, delivered the opinion of the court.
None of the objections to the reading of the deposition go to the testimony of the witness. All of them relate to defects and irregularities which might have been obviated by retaking the deposition. It does not appear that any notice beforehand was given to the counsel of the plaintiffs that they would be made. In such cases the objection must be noted when the deposition is taken, or be presented by a motion to suppress before the trial is begun. The party taking the deposition is entitled to have the question of its admissibility settled in advance. Good faith and due diligence are required on both sides. When such objections, under the circumstances of this ease, are withheld until the trial is in progress, they must be regarded as waived, and the deposition should be admitted in evidence. This is demanded by the interests of justice. It is necessary to prevent surprise and the sacrifice of substantial rights. It subjects the other party to no hardship. All that is exacted of him is proper frankness.
The settled rule of this court is in accordance with these views.*
The District Court erred in excluding the deposition, and the Supreme Court of the Territory erred, ¡is regards this point, in affirming the judgment.
Judgment reversed, and the case remanded with direction to issue
A VENIRE DE NOVO.
*
The York Co. v. Central Railroad, 3 Wallace, 113; Shutte v. Thompson, 15 Id. 160; Buddicum v. Kirk, 3 Cranch, 293.
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Howard v. Stillwell & Bierce Mfg. Co., 139 U.S. 199 (U.S. 1891)…retake the deposition. Shutte v. Thompson, 15 Wall. 151, 158 et seq.; Mechanics’ Bank of Alexandria v. Seton, 1 Pet. 299, 307; Winans v. New York and Erie Railroad, 21 How. 88, 100; York Company v. Central Railroad, 3 Wall. 107, 113; Doane v. Glenn, 21 Wall. 33, 35; Buddicum v. Kirk, 3 Cranch, 293, 297; Rich v. Lambert, 12 How. 347, 354. The remaining assignment of error, which relates to the striking out of so much of ‘the defendants’ plea as sought a recovery of profits, and the refusal of the court to…
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Blakeslee v. United States, 32 F.2d 15 (1st Cir. 1929)…Diaz v. United States, 223 U. S. 442, 450, 451, 32 S. Ct. 250, 56 L. Ed. 500, Ann. Cas. 1913C, 1138; United States v. McCoy, 193 U. S. 593, 595, 24 S. Ct. 528, 48 L. Ed. 805; York Mfg. Co. v. R. Co., 3 Wall. 107, 113, 18 L. Ed. 170; Doano v. Glenn, 21 Wall. 33, 35, 22 L. Ed: 476; Schlemmer v. Buffalo; Rochester, etc., R. Co., 205 U. S. 1, 9, 27 S. Ct. 407, 51 L. Ed. 681; Damon v. Carrol, 163 Mass. 404, 405, 40 N. E. 105; 1 Wigmore, Ev. 52-62, § 18. At the eloso of the government’s ease, various motions w…
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Order of United Commercial Travelers of Am. v. Tripp, 63 F.2d 37 (10th Cir. 1933)…as these objections may be curable, in the interval before trial, they should be made before trial.” Wigmore on Evidence (2d Ed.) vol. I, p. 177. See, to the same general effect, Shutte v. Thompson, 15 Wall. 151, 161, 21 L. Ed. 123; Doane v. Glenn, 21 Wall. 33, 35, 22 L. Ed. 476; Beatty Brokerage Co. v. Gulf, C. & S. F. R. Co. (C. C. A. 5) 17 F.(2d) 480. Circumstances may arise that require a relaxation of the rule, but none such is present here. When counsel for appellee, present when the deposition was…
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- Buddicum v. Kirk, 3 Cranch 293 (U.S. 1806)