#### FARMERS’ LOAN & TRUST CO., Respondent, v. DE MOULIN, Appellant.

(195 N. W. 444.)

(File No. 5118.

Opinion filed October 18, 1923.)

1. Pleading — Waiver—Demurrer—Pleading Over When Demurrer Sustained Waives Objection to Ruling.

Where plaintiff’s demurrer to counterclaim was sustained, and, instead of standing on the pleading, defendant answered ratver, he thereby abandoned his right to -further challenge that ruling.

2. Stipulations — Depositions—Taking Deposition of Witnesses Not Named; in Stipulation Held Authorized Thereby.

A stipulation between the atorneys for taking depositions of F. “and other witnesses,’’ authorized taking of depositions of witnesses not named.

S. Depositions — Trial—Part of Deposition Pertaining to Main Oase ' May Be Read Without Reading Matters Pertaining to Rebuttal.

Where certain pants of certain depositions covered matters pertinent to the main case, it was not error to allow them to [be read without then reading those portions which pertained to rebuttal matters, when 'the part read did not consist of mere fragmentary excerpts.

4. Depositions — Evidence—Note Admissible in Evidence When Not Attached to nor Returned with Depositions When Certain that Note Was the One upon Which Suit Brought.

Where the note in suit was not attached to nor returned with certain depositions which were necessary to prove plaintiff's case, but it was apparent from ,the pleadings and the evidence that the *mote*offered in evidence was that upon which suit was-brought, and which was referred to in the depositions, the trial court; did not abuse its discretion in admitting it.

Appeal from 'Circuit 'Court, Fall River County; Hon. Walter G. Miser, Judge.

Action by the Farmers’ Loan & Trust [Company against Ernest P. De M'oulin. From- judgment for plaintiff and an order 'denying a new trial, defendant appeals.

Affirmed.

*Helm & Lewis,*of Hot Springs, for Appellant.

*P. P. Ward*and *Chas. S. Eastman,*both of Hot Springs, for Respondent.

(1) To point one of the opinion, Respondent cited: 6 Eftc. PI. & Pr. 359; Sogn v. Keotzle, 38 S. D. 99; Sohwitz v. Thomas, 38 S. D. 180; Piemen v. Minnehaha Co., 26 S. D. 462.

*577(2) To point two, Appellant cited: Rev. Code 1919, Sec. 2762; McConnel v. Marguiles, 39 S. D. 563; Babcock v. Ormsby (S. D.), 100 N. W. 759; Ashe v. Beardsley (N. D.), 69 N. W. 188; Pape v. Wright (Ind.), 19 N. E. 459-462; Smith v. Westerfield (Cal.), 26 Pac. 206; Strayer v. Wilson (la.), 7 N. W. 7; Donaldson v. Winningham (Wash.), 102 Pac. 877. .

Respondent cited: Frederick Milling Co. v. Frederick Farmers’ Alliance Co., 29 S. D. 335; 36 Cyc. 1285; 36 Cyc. 1291; 36 Cyc. 1292; McCormack v. Phillips, 4 Dak. 506.

(3) To point three, Appellant cited: Eil'bourne v. Jennings,-40 la. 473; Bank v. Rhutassel, 67 la. 316, 25 N. W. 261; Prewitt v. Martin, 59 Mo. 325,; Bank v. McSpedon, 15 Wis. 628; Schwartz v. Brunswick, 73 Mo. 256; Grant v. Pendery, 15 Kans. '236; Lanahan v. Lawton, 50 N. J. 276, 23 Atl. 476; Scott v. Wagon Works, 48 Ind. 764 Converse v. Miller, 14 Nebr. 190, 15 N. W. 340; Walkley v. 'Clarke (la.), 78 N. W. 70; Hill v. Sturgeon, 28 Mo. 322; State v. Rayburn, 31 Mo. App. 386; Code Civ. Pro., Secs. 2028, 2032, 2034; McArdle v. Bullock, 45 Ga. 89; Van Horn v. Smith, 59 la. 152; Bank of O'rland v. Finnel (Cal.), 65. Pac. 976; Gussner v. Hawks (N. D.), 101 N, W. 898; Logan v. McGinnis, 12 Pac. 27, 32; Walter v. Sperry (Conn.), 44 L. R. A.. (N. S.) 30; Goodman v. Merchants’ Dispatch, etc., 3 Pa. Sup. C't. 282; Hamilton Brown Co. v. M'illiken (Nebr.), 86 N. W. 9x4; Bank v. Elevator Co., 91 N.. W. 436.

Respondent cited: Crolly v. C. G. W. R. Co., 169 Fed. 593; Bowmen v. D'urant, 25 'N. D. 11, 140 N. W. 728; First Natl. Bank v. Elevator Co., 11 N. D. 280, 91 N. W. 436.

(4) To point four, Appellant cited: Fountain City 'Drill ;Co. v. Lindquist (S. D.), 114 N. W. 1098; Shockley v. Morgan, 103 Ga. 156, 29 S. E. 694; Huston v. Roots, 30 Ind. 461.

Respondent cited: Toby v. Oregon Pac. R. R. Co. (Cal.), 33 Pac. 350.

GATES, J.-

This is an action upon a promissory note. At the conclusion of the trial the court directed a verdict in favor of plaintiff. From the judgment and order denying new trial defendant appeals.

[1] It is first urged that the court erred in sustaining plaintiff’s demurrer to defendant’s counterclaim. The defendant, in-. *578stead of standing on said pleading, answered over. He thereby abandoned his right to further challenge the ruling complained of. Sogn v. Koetzle, 38 S. D. 99, 160 N. W. 520.

[2] Appellant next complains of the refusal of the court to suppress the depositions of Toy and Dberfler. A stipulation had been entered into between the attorneys for the parties that the depositions of Ferguson, and other witnesses might be taken at Sioux City at a time and place named. The objection is that the names of Toy and Doerfler were not mentioned in the stipulation. The words “and other witnesses” in the' stipulation preclude the appellant from making such objection.

[3] It is urged that the trial court erred in permitting respondent’s counsel to read certain parts of certain depositions without reading the whole thereof to the jury. Counsel stated to the trial court that the depositions covered matters pertinent to their main case, and' matters perinent only -in rebuttal, and that they desired at that time to read only those matters pertinent to the main case. Permission was given. The part read conformed to the offer, and did' not consist of mere fragmentary excerpts. We do not think the court erred in permitting respondent’s counsel to refrain from reading those portions of the depositions which pertained to matters in rebuttal, that period in the case not having then been reached. 18 C. J. 735.

[4] The chief argument of appellant concerns the admission in evidence of the note in suit marked Exhibit C. It is urged that the note was not attached to nor returned with the depositions, and therefore that there is no proof that the note testified to and described in the depositions is the same note that was offered in evidence, and that without the depositions the respondent did not prove its case. They rely upon Fountain City Drill Co. v. Lindquist, 22 S. D. 7, 114 N. W. 1098, wherein the court said:

> “Although the statute of this state provides no special method for identifying pr making a letter or other document a part of the deposition of a witness, it certainly must be in some manner attached or referred to therein, or returned therewith, or.be mentioned in the certificate of the officer before whom 'such deposition was taken.”

It was clearly apparent to the trial court from the pleadings and the evidence, as it is to ús, that the note offered in evidence *579was the note upon -which suit was brought, and was, arid could only have been, the note referred to in the depositions. We think the trial -court did not abuse -its discretion nor act arbitrarily in permitting the introduction of the note in evidence.

■Finding no prejudicial error in the record, the judgment and order denying new trial are affirmed.

■NIot-e. — Reported, in 195 N. W. 444. See, Headnote (1), American Key-Numbered Digest, '-Pleading, Key-No. 418(3), 31 -Cyc. 744; (2) Stipulations, Key-No. 14(1), 36 Cyc. 1291; (3) Depositions, Key-No. 86, 18 C. J. Sec. 34'6; (4) Depositions, • Key-No. 68, 18 C. J. 'Sec. 236.