I. The deposition of Welch was properly admitted. Under the stipulation it was not competent for the defendants' counsel to object to the " deposition being used in evidence." The saving of exceptions and objections only goes to objections to the testimony given, for incompetency or irrelevancy, but does not save a preliminary objection to the witness himself. It was so decided in Stebbins v. Sutter, 2 Stew. 149.
Objections to the competency of a witness must be taken at the time the deposition is taken, if known at that time; and if the party proceeds with the cross-examination of the witness (except de bene esse ) after he knows of his interest, he therebywaives the objection. A single step is sufficient. Morehouse v. De Passen, Coop. C. C. 300; 19 Vesey, 433; Hamond v. Courtald, 1 Russ. & Myl. 429; Fellingham v. Sparrow, 9 Dowl. P. C. 114; 4 Jur. 1036; Lunnings v. Row, 10 Ad. & E. 606; 2 Per. & D. 538; 3 Mo. 604; Sheridan v. Medara, 2 Stockt. 469; Drake v. Foster , 28 Ala. 649; Crosby v. Floyd, 2 Baily, 133; Henry v. Morgan, 2 Binn. 497; Hayes v. White Pigeon Beet Sugar Co., 1 Doug. 193; Lewis v. Moore , 20 Conn. 211; Choteau v. Thompson, 3 Ohio, 424; Hair v. Little , 28 Ala. 236; Kimball v. Gearhart , 12 Cal. 46; 1 Phil. on Ev. 154, and note 5.
The precise question seems to have been determined in this Court in the case of Jones v. Love , 9 Cal. 71, where the Court say: " No objection was taken to the testimony of the witness upon his examination or cross-examination on this ground, and no objection appeared on the face of the deposition. The fact of interest there appeared, but no statement that the defendants would object to his testimony on the trial for that cause. It was too late to make the objection upon the trial after defendants had appeared and cross-examined the witness. Such an objection must be taken at the earliest moment."
II. There was no error in refusing to strike out the testimony of the plaintiff's witness, William Shear, on the ground that he was interested in the premises.
If, as counsel say, the interest of the witness appeared by the production of the partition deed, he should have objected then. But his examination was continued; and it was not until the defendant had finished his cross-examination that he moved to strike out the testimony. It was too late. If the objection of his interest was founded upon the partition deed, it should have been made when that deed was introduced. (See authorities cited on first point.)
III. The admission of Harkness to testify in rebuttal was right; but whether right or wrong, it was a matter of discretion with the lower Court, and not reviewable on appeal. Cutburk v. Gilbert , 4 S. & R. 551; Jackson v. Tallmage , 4 Conn. 450; Hutchings v. Childrens, 4 Stew. & Port. 34; Myer v. Ludwig, 1 Penn. 47; Smith v. Britton, 4 Humph. 201; Prather v. Taylor, 1 B. Mon. 244; Vicaro v. Commonwealth, 5 Dana, 504; Commonwealth v. Richetston, 5 Met. 412; Taylor v. Shemwell, 4 B. Mon. 575; Ford v. Niles, 1 Hill, 300; Phila. R. R. v. Stevison, 14 Pet. 448; Burnham v. Howe, 10 Shep. 489; Young v. Bennett, 4 Scam. 43; Slate v. Silver, 3 Dev. 382; Towns v. Riddle , 2 Ala. 694; Faut v. Cathcart , 8 Id. 725; Borland v. Mayhew, Id. 104; Joy v. Phifer , 13 Id. 821; Walker v. Walker, 14 Geo. 240; Duane v. Treat , 35 Me. 198; Pierce v. Wood, 3 Foster, 519; Henry v. Lowell, 16 Barb. 268; McCoy v. Phillips, 4 Rich. 463; Gilbert v. Gilbert , 22 Ala. 501; Edgar v. McArn, Id. 796; Outlaw v. Hurdle, 1 Jones' Law, 150; Morse v. Holland , 36 Me. 14; Robinson v. Fitzburg and M. R. R. Co., 7 Gray, 92; Martin v. Maguire, Id. 777; Bergen v. White, 2 Bosw. 92; Mattier v. Colbert, 24 Geo. 384; Mowry v. Starbuck. 4 Cal. 275; Priest v. Union Canal Co. , 6 Id. 171; Gordon v. Searing , 8 Id. 50; Touchard v. Cal. Stage Co. , 13 Id. 605; Lisman v. Early , 15 Id. 199.
IV. In ordinary cases, notwithstanding a misdirection, if the Court see that justice has been done, and that a new trial ought to produce the same result, a new trial will not be granted. 1 Graham & W. on New Trials, 301. We think it would be going too far in a case where legal and equitable justice appears to be done by the verdict, to grant a new trial for an error which did not probably, although it might possibly, have operated upon the minds of some of the jury. Train v. Collins, 2 Pick. 145. The Court never grants a new trial when they see clearly the merits have been fully and fairly tried. Samson v. Appleyard, 3 Wilson, 272. Though the Judge may have made some little slip in his directions to the jury, yet if justice be done by the verdict, the Court ought not to interfere and set it aside. Eastwick v. Caillaud, 5 Term, 420; 1 Graham & W. on New Trials, 271, 301, 322, 323, 341-344; 3 Id. 817; Johnson v. Blackman , 11 Conn. 342; Woodbeck v. Keller, 6 Cow. 118; Dale v. Arnold, 2 Bibb, 605; Train v. Collins, 2 Pick. 145; Brazier v. Clapp , 5 Mass. 1; Jones v. Fales, Id. 101; Newhall v. Hopkins , 6 Id. 350; Rennington v. Congdon, 2 Pick. 310; Leigh v. Hodges, 3 Scam. 15; King v. Hill, 2 Tayl. 211; Gillett v. Swett, 1 Gilman, 475; Harris v. Doe, 4 Black. 269; Morton v. Lunson, 1 B. Moore, 45; Bonlan v. People, 1 Brev. 109; Ingraham v. S.C. Ins. Co. , 3 Id. 522; Graham v. Bradley, 5 Humph. 476; Wylie v. King, Geo. Dec. part 2, 7; Princeton and Kingston T. Co. v. Gulick, 1 Har. 161; Emanuel v. Cocke, 6 Dana, 212; Thomas v. Tanner, 6 Min. 62; Howard v. Miner, 7 Shep. 325; Trench v. Stanley , 8 Id. 512; Freeman v. Rankin, Id. 446; Reynolds v. Magness, 2 Ired. 26; Jewell v. Lincoln, 2 Shep. 116; Price v. Evans, 4 B. Mon. 386; Ratcliff v. Huntley, 5 Ired. 545; Mansfield v. Wheeler, 23 Wen. 79; Potter v. Hopkins , 25 Id. 417; Selleck v. Turnp. Co. , 13 Conn. 453; Camden T. Co. v. Belknap, 21 Wen. 354; Gelin v. Stevens , 7 N.H. 352; Branch v. Doane , 17 Conn. 402; Randall v. Baramore, 1 Branch, 409; Greenup v. Stokes, 3 Gilman, 202.
JUDGES: Cope, C. J. delivered the opinion of the Court. Norton, J. concurring.
OPINION
COPE, Judge
This is an action to recover of the defendants the possession of twenty acres of land in the City and County of San Francisco. The complaint alleges that on a certain day the plaintiff was seized and possessed of the land in question, and that the defendants entered and ousted him. The answer denies the allegations of the complaint, and sets up the Statute of Limitations.
On the trial the plaintiff relied upon the prior possession of one Foley, and others, under whom he claims. The case was tried by a jury, and the plaintiff obtained a verdict, and we are asked to review the evidence, which is claimed to have been insufficient to justify the action of the jury. On this point, it is only necessary to say that the evidence is of such a character as to preclude interference on our part: it is voluminous and conflicting, and we cannot undertake to say that the jury arrived at an erroneous conclusion. The objection to the deposition of Welch is untenable. The deposition was taken in another case, and there was a stipulation that it should be used on the trial " with the same force and effect, and subject to the same exceptions and objections in all respects as if taken in this case." When the deposition was offered, it was objected that the witness was incompetent from interest, but we regard the stipulation as a waiver of this objection. The effect of the stipulation was to place the deposition upon the same footing as if it had been taken in the present case, and it is a settled rule that a party who appears at the taking of a deposition, and examines the witness without objecting to his competency, cannot afterwards interpose the objection. We understand the stipulation as reserving only such " exceptions and objections" as could properly be taken when the deposition should be offered in evidence.
There is nothing in the point that the Court erred in refusing to strike out the testimony of the witness Shear. His interest, if he had any, appeared during his direct examination, and the motion to strike out was not made until the defendants had cross-examined him. Of course, it was made too late, as the defendants could not, knowing the interest of the witness, take their chances of a cross-examination, and subsequently avail themselves of the objection to get rid of the evidence.
The point as to the testimony of Harkness only goes to the exercise of a discretionary power by the Court, and is not a matter for revision on appeal.
The only additional points relate to the action of the Court in giving and refusing instructions. We are of opinion that the case was fairly submitted to the jury, and that the record discloses no error for which the judgment should be reversed. It is possible that instructions were refused which could properly have been given, and that some of those given are subject to verbal criticism. On the whole, however, we think there is no substantial ground of objection, as the question for the jury was a very simple one, and depended entirely upon the weight of evidence.
The judgment is affirmed.
On rehearing Cope, C. J. delivered the following opinion--Norton, J. concurring: The petition for a rehearing in this case is denied. Welch testified in regard to his interest when his deposition was taken. He stated that he had formerly owned a portion of the property, but had sold it. He so stated both on his direct and cross-examination. The fact that certain deeds were afterwards given in evidence, showing his previous ownership, was not sufficient to exclude the deposition.
The point in regard to the testimony of Shear is not well taken.
The petition is denied.