
    Thomas Yearsley, appellant, v. Charles Blake, Administrator, appellee.
    Filed January 5, 1910.
    No. 15,884.
    1. Depositions, Exceptions to. An exception to a deposition, on the ground of a defect in the notice, cannot he considered unless made in writing, and filed before the commencement of the trial. Code, secs. 389, 390.
    2. Evidence examined, and held to support the verdict.
    Appeal from the district court for Frontier county: Robert C. Orr, Judge.
    
      Affirmed.
    
    
      S. R. Smith, for appellant.
    
      L. H. Cheney, contra:
    
   Letton, J.

This is an action brought to recover from the estate of Baudway Yearsley, deceased, the sum of $838, for board, lodging, care, and medical attendance furnished the deceased, and for the board of deceased’s wife and child. The petition alleges that the deceased,while sane,promised and agreed to pay for such service. The answer, in effect, admits the furnishing of the board, .and rendition of the attendance and services, but, as to the deceased, alleges a settlement and payment in full, and, as to the wife and child, alleges that they went to the plaintiff’s home upon plaintiff’s invitation, and that during their residence there the wife assisted in the household and farm work. The claim having been filed in the probate court and disallowed, upon appeal to the district court issues were made up and the case tried to a jury, resulting in a verdict for the estate, from which plaintiff appeals.

In December, 1901, Baudway Yearsley was an insane person confined in the asylum for the insane at Hastings, Nebraska. His brother, Thomas Yearsley, who lived in Iowa, took the insane man to his home, with the consent of the family, and with the assistance of his aged mother cared for him from December 5, 1901, to March 18, 1903. Baudway’s wife and child afterwards went to Iowa and lived with Thomas from February 15, 1902, to March 18, 1903, when, Baudway’s mental and physical health having been largely restored, he, with his family, returned to Nebraska, where he afterwards died. There is little dispute as to the facts, except as to the extent of deceased’s incapacity during the first six months that -he lived at his brother’s home in Iowa. The plaintiff’s witnesses testify, in substance, that he was confined to his bed for the first five or six months of his stay, that the plaintiff, his mother, and plaintiff’s family cared for him, and that he promised to pay all that was owing for the services. On the other hand, Baudway’s wife testifies that when she went to Iowa, on the 2d of March, 1902, it was in response to a letter from her niece, who was a member of plaintiff’s family, inviting her to come there; that when she arrived her husband was able to come out to the wagon to meet her; that after the first week she occupied the same room with her husband, and that no one sat up with him after that time, and it was unnecessary for any one to do so; that she took care of him most of the time thereafter when he needed care, and that afterwards he helped to do light work out of doors during the summer. She further testifies that just before she and her husband left for Nebraska her husband asked the plaintiff how much he owed him; that the plaintiff said $100, and that her husband told him that he would pay him as soon as he got back to Nebraska and settled; that after they returned she wrote for her husband a letter, inclosing a draft for $300, and sent same to plaintiff; that in response they received a letter ■ written by the niece acknowledging receipt of the $3.00; that from that time until her husband’s death neither she nor her husband had received any request for additional payment for the care of the deceased aud herself and child while they were in IoAva. A copy of the letter written by Mrs. Yearsley, inclosing $100, and an indorsement thereon in Baudway’s handwriting, as follows: “If this is not enough let me know and I will make it right” — is in the record. From that time until after Baudway’s death, in July, 1905, no claim was made by the plaintiff for any further compensation.

The plaintiff complains that the verdict is not supported by the evidence. While it is clear that Araluable services were performed and sustenance supplied by the plaintiff, Ave think the evidence as to a settlement was sufficient to uphold .the verdict of the jury.

As to the objection made to the Avife of deceased being allowed to testify to a conversation had beiAveen the deceased and the plaintiff with reference to the amouni claimed by plaintiff, the evidence AAras admissible as an admission against interest on the part of plaintiff. Plaintiff complains that he- had no time to meet this testimony without an adjournment of the case, because he Avas not present at the trial, but it is not uncommon for witnesses to testify in a manner unforeseen by the opposite party, and the objection was not made', upon the ground of surprise, nor Avas any request for a continuance made.

Complaint is made as to the giving of instructions, but no exceptions Avere taken at the time, and, hence, they cannot be reviewed. We have examined, the errors assigned witli reference to the rulings upon other objections to testimony, and think there is no prejudicial error therein.

As to the point that the notice to take depositions was not properly served, this need not be considered, because the alleged defect was known before the trial, but no exceptions were made before its commencement, as required by sections 389 and 390 of tlie code.

No prejudicial error being found, the judgment of the district court is

Affirmed.  