Bem v. Bem

Citations

• 4 S.D. 138
• 55 N.W. 1102
• 1893 S.D. LEXIS 57

Syllabus

<p>1. When refusal to suppress a deposition is assigned as error, the record must show the existence of the facts upon which the motion was based. It cannot be assumed that the facts existed because they were stated in the notice as the grounds upon which the motion would be made.</p> <p>2. Under Section 5289, Comp. Laws, in relation to taking depositions, providing that “the notice shall be served so as to allow the adverse party sufficient time by the usual route of travel to attend, and one day for preparation, exclusive of Sundays and the day of service,” the adverse party is entitled to an extra day for preparation beyond the time required to reach the place where the deposition is to be taken.</p> <p>3. Where, however, the notice is short, in not allowing the one day for preparation, and both parties appear, and the notifying party then and there offers to postpone the examination, so as to afford the adverse party the day for preparation, failure to accept such offer without any explanation or reason therefor, and participating in the examination without further objection, answers any presumption of prejudice to the adverse party, and error without prejudice is no ground for reversal.</p> <p>4. Errors assigned upon the ruling of the trial court upon objections to interrogations and answers referred to in the assignment by number only cannot be considered on an abstract in which the questions and answers, with their numbers, are not preserved, but are condensed and presented in narrative form, so that this court is unable to locate the particular matter objected to.</p> <p>5. The abstract is the record upon which a case is heard in this court, and whatever matters it is necessary for this court to know and consider must be presented by the abstract. Noyes v. Lane, (S. D.) 48 N. W. Rep. 322.</p> <p>6. Where a husband takes notes, securities, or real estate in the name of his wife, that fact, alone and unexplained, raises the presumption that he intended the sam