Katzenstein v. . R. R. , 78 N.C. 286 ( 1878 )

On the trial of this action the defendant objected to the admission of certain depositions as evidence for the plaintiff, on the ground that notice of taking such depositions was served upon the local agent of defendant, at Warrenton depot, upon whom the original summons in the action had been served, and insisted that the notice should have been served on the president or superintendent of the company, or one of its directors, and this is the only exception.

The service of the summons on the local agent was sufficient for an action in the Superior Court (C. C. P., sec. 82 (1); Laws 1874-75, ch. 168) and these provisions, in regard to the service of process upon corporations, apply to justices' courts. Bat. Rev., ch. 63; Rule XV.

If service on such agent was sufficient to bring the defendant into court, it would seem clear that notice of any proceeding in the action on the same agent would suffice, in the absence of any allegation that thereby any injustice has befallen the defendant. We assume that the deposition was taken after the justice's trial, and before the trial term of the Superior Court, and that the objection was first raised to the deposition during the trial, and not by a motion to quash the deposition before the trial began. If we are wrong in these respects, it is because we are not better informed by the record, nor by counsel in their argument.

In this view of the fact, the objection comes too late. "No deposition shall be quashed or rejected on objection first made after a trial has begun, merely because of an irregularity in taking the same, provided it shall appear that the party objecting either had the notice of its being taken as herein prescribed, or had notice that it had been taken, and was on file long enough before the trial to enable him to (288) present the objection as prescribed in the next section. At any time before any action or proceeding has begun, any party may move the judge to reject a deposition for irregularity in the taking of it, of the whole or any part of it, for . . . or for any other sufficient cause." Laws 1869-70, ch. 227, secs. 12, 13. The same point was decided inCarson v. Mills, 69 N.C. 32.

PER CURIAM. No error.

Cited: Wasson v. Linster, 83 N.C. 580; Barnhardt v. Smith, 86 N.C. 480;Sparrow v. Blount, 90 N.C. 518; Woodley v. Hassell, 94 N.C. 160;Carroll v. Hodges, 98 N.C. 419; Davenport v. McKee, id., 507; Hopkins v.Bowers, 111 N.C. 179; Grady v. R. R., 116 N.C. 953.

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