Page:North Dakota Reports (vol. 48).pdf/710

 Depositions—informalities held waived by general appearance by defendant.

7. Where defendant makes a general appearance, he waives the legal right to object to the reception in evidence of depositions on the ground that notice to take depositions was served before the summons, that the interpreter taking the depositions was prejudiced, and that the depositions were taken on a legal holiday; Comp. Laws 1913, § 7890, providing that either party may commence taking testimony by depositions at any time after service upon or appearance of defendant.

An appeal from an order denying motion for judgment notwithstanding the verdict or for a new trial, and from the judgment, Berry, J.

Order and judgment affirmed.

Young, Conmy & Young, for appellant.

There was no proof of negligence here. Aerkfetz v. Humphreys, 145 U. S. 418-421; Hinson v. Atlanta & C. Air Line Ry. Co., go S. E. 722; Land v. St. Louis & S. F. R. Co., 148 Pac. 612; Fort Worth & D. C. Ry. Co. v. Copeland, 164 S. W. 858; Boldt v. Pennsylvania R. Co., 218 Fed. 368.

“The employer is ‘not bound to assume that any employe familiar with the manner of doing business, would be wholly indifferent to the going and coming of the cars. Aerkfetz v. Humphreys, et al., supra. Wherein defendant may reasonably be said to have failed in the duties to such employes with relation to this yard and the manner of doing work therein, we are unable to perceive from the evidence.” Crowe v. N. Y. C. & H. R. Co., 70 Hun, 37, 23 N. Y. Supp. 1100; Connelley v. Penn. Ry. Co., 228 Fed. 322, 142 C. C. A. 614; Travis v. Kansas City So. Ry. Co., 121 La. 886, 46 So. 909; Neidlein v. Southern Pac. Co., 179 Pac. 194; Ciebatone v. Chicago, Great Western Ry. Co., et al, 178 N. W. &90-1.

Error in taking deposition on a legal holiday.

“Over objection made at the time, the deposition was taken on February 12th, a:legal holiday under the statute. The point was also raised in the motion to suppress. We submit the motion to suppress should have been granted.” Leonosis v. Bartilins (S. D.) 63 N. W. 543, 75 S.