#### J. F. MILLSPAUGH, Respondent, v. MISSOURI PACIFIC RAILWAY COMPANY, Appellant.

Kansas City Court of Appeals,

May 31, 1909.

1. TRIAL PRACTICE: Deposition: Notice: Timely Objection. There were two defendants. Deposition was taken on notice to only one of them. It was not admissible against the other. At the trial the plaintiff offered the depositions and they were read to the jury, and thereupon the court adjourned immediately. The first thing next morning the other defendant objected to the deposition so far as it wa9 concerned. *Held,*the proceeding was proper and the objection was timely.

2. APPELLATE PRACTICE: Abstract: Objections. An abstract of the record is held sufficient notwithstanding certain objections.

Appeal from Jackson Circuit *Court.*— Eon. *James E. Blover,*Judge.

Reversed and remanded.

*Elijah Robinson*and *Harris Robinson*for appellant.

(1) The court should have instructed the jury, upon this defendant’s motion, not to consider the testimony of E. A. Woodman and T. D. Montague in arriving at a verdict as to this defendant. Baustian v. Young, 152 M'o. 317; State v. Minor, 193 Mo. 597; Pryor v. Railroad, 85 Mo. App. 367; Sandige v. Hill, 70 Mo. App. 71; Sparr v, Wellman, 11 Mo. 230; Fitzgerald v. State, 14 Mo. 413; Knox v. Hunt, 18 Mo. 174; Gutzweiler v. Lock-man, 39 Mo. 91. (2) The burden is on the shipper to show the delivery of the goods to the carrier and the failure of the carrier to deliver them. Grain Co. v. Wabash Railroad, 114 Mo. App. 496; Otis Co. v. Railroad, 112 Mo. 622; Read v. Railroad, 60 Mo. 199; Harvey v. Railroad, 74 Mo. 538; Hance v. Express Co., 48 Mo. App. 179; Whiting v. Railroad, 28 M'o. App. 103; Railroad *32Co. y. Reynolds, 8 Kan. 623; Kallman v. Express Co., 3 Kan. 205; Coates v. Express Co., 45 Mo. 241: Connor v. Railroad, 181 Mo. 397.

*Botsford, Deatherage & Greason*for respondent.

(1) Appellant’s abstract of the record proper is not sufficient and therefore its appeal should be dismissed. Storage & Warehouse Co. v. Glasner, 150 Mo. 426; Butler v. Grady, 1.52 Mo. 442; Wheeling v. Lead Co., 92 S. W. 883; R. S. 1899, sec. 813. (2) The printed bill, of exceptions is not the place in which to enter the record proper. Shoe Co. v. Williams, 91 Mo. App. 511; Storage & Warehouse Co. v. Glasner, 152 Mo. 426; Wheeling v. Lead Co., 92 S. W. 883; R. S. 1899, sec. 813. (3) Plaintiff’s petition or statement which alleges delivery, and loss of hogs while in defendant’s possession as a common carrier, is sufficient. Roan v. Railroad, 38 M'o. App. 414; McFadden v. Mo. Pac. Railroad Co., 92 Mo. 342 1. c. 346-7.

ELLISON, J.

— This action was begun before a justice of the peace to recover damages for the loss of eleven head of hogs out of a lot of seventy-nine shipped from Cherokee, Oklahoma, to Kansas City, Missouri, by way of Wichita, Kansas. The shipment and contract were made over the Kansas City, Mexico & Orient Ry. Co. to Wichita and there delivered and accepted, under same contract, by the defendant the Missouri Pacific Railway Company to be transported to Kansas City. The action was brought against both railroads and plaintiff had judgment against both before the justice. On appeal to the circuit court, at the close of the trial, he dismissed the action as to the Kansas City, Mexico & Orient Ry. Co., and recovered judgment against the Missouri Pacific alone, and that company appealed.

During the trial plaintiff introduced in evidence the depositions of two witnesses taken on a notice given to *33the Kansas City, Mexico & Orient Company only. After it was read, the Missouri Pacific Company moved the court to direct or inform the jury that in arriving at a verdict the depositions should not be considered as evidence against it. This was overruled. Error was committed in such ruling. This is not denied by plaintiff, but he says that defendant cannot object now for the reason that it did not object when the dépositions were offered. We think defendant pursued the proper course. Plaintiff’s citation (1 Wigmore’s Ev., pp. 53-56) is not applicable. At the time the depositions were read the Kansas City, Mexico & Orient Company was yet a party defendant and as that company had been notified that they would be taken, they were admissible against it. It was proper therefore to admit the depositions and then advise the jury that they should not be considered against the Missouri Pacific Company.

Immediately at the conclusion of reading the depositions court adjourned till next day and the first thing next morning counsel made the request. This was in ample time.

Objections have been presented to the sufficiency of defendant’s abstract, but we think it sufficient. Plaintiff’s observations on this head seem to be confined to the abstract of the bill of exceptions, but defendant had a distinct abstract of the record proper in addition, which we think to be ample.

Several technical objections were taken by defendant to the sufficiency of proof, etc., which, since there is to be another trial, need not be noticed. The judgment is reversed and cause remanded.

All concur.