Miller v. McDonald
Wisconsin Supreme Court
APPEAL from tbe Circuit Court for Racine County. This was an action to foreclose a mortgage. Tbe defense was, that tbe notes secured by tbe mortgage were given in payment for a stallion, wbicb tbe plaintiff sold to tbe defendant, witb a warranty that tbe horse, was sound, and “ sure and perfect for stockand that tbe defendant bad sustained damages by a breach of tbe warranty, to an amount greater tban tbe notes.
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APPEAL from tbe Circuit Court for Racine County. This was an action to foreclose a mortgage. Tbe defense was, that tbe notes secured by tbe mortgage were given in payment for a stallion, wbicb tbe plaintiff sold to tbe defendant, witb a warranty that tbe horse, was sound, and “ sure and perfect for stockand that tbe defendant bad sustained damages by a breach of tbe warranty, to an amount greater tban tbe notes. On tbe trial, tbe defendant offered in evidence tbe deposition of one Hotailing, wbicb was objected to for want of proper notice of its taking, and because it was taken at a place…
1Opinion of the Court
By the Court,
DixoN, C. J.
In my opinion the deposition of the witness Hotailing was properly received. The rule 'is generally, if not universally, well settled, that if a party appears and cross-examines, or appears and obj ects to questions •put or the evidence given by the witness, he thereby waives all objections which he might have urged on account of any defect or want of notice. 6 Watts & S., 46; 32 Maine, 179; -12 Ill., 267; 2 Bibb, 316. The rule is both rational and just. Having appeared and availed himself of the privileges . which the notice was designed to give, he ought not…
2Cases cited2 opinions
- County of Greene v. BledsoeIllinois Supreme Court · 1850
- Barnet v. School DirectorsSupreme Court of Pennsylvania · 1843
3Cited by5 opinions
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- Babcock v. OrmsbySouth Dakota Supreme Court · 1904
- Benham v. PurdyWisconsin Supreme Court · 1880