Armstrong v. Lipscomb

• Decision Date: 01 January 1854
• Citation: 11 Tex. 649
• Parties: ARMSTRONG, USE OF, ETC., v. LIPSCOMB.
• Court: Texas Supreme Court

11 Tex. 649

ARMSTRONG, USE OF, ETC.,

v.LIPSCOMB.

Supreme Court of Texas.

1854.

The Act of 1846, Sec. 86, p. 386 (Hart. Dig., Art. 741), which dispenses with the proof of the execution of instruments on which the action is founded, in whole or in part, does not dispense with the production and introduction of the instruments in evidence.

Where the defendant pleaded that the notes sued on were barred, and that he was not indebted, and a general denial, it was held, that under the pleadings the plaintiff was bound to prove his cause of action.

We have repeatedly decided that a judgment must be presumed to be right, until shown to be wrong; that although an instruction, or charge, of the Court may be erroneous, it must be shown to have operated some actual or possible injury to the appellant; and that this can only be done by showing that on the facts proved, he was entitled to a judgment in his favor; and that when the facts, as proved, are not embodied in the transcript, the case stands here as if either no evidence had been adduced, or only such as had authorized the verdict; and that when facts to sustain the issue, are not shown to have been proven, the instructions given or refused must be regarded as abstract propositions, and as such not authorizing a reversal of the judgment, where such judgment was in fact the only one, from the evidence, or rather the want of evidence, which could have been rendered. (Note 89.)

Error from Austin. This action was instituted on three promissory notes of hand, described in the petition as having been drawn and signed by the defendant in error, on the fifth day of December, 1837, at Mobile, in the State of Alabama, one of the United States, payable to his own order at the Bank of Mobile, and by the defendant then and there indorsed to J. Nicholson, Esq., Cashier, or order, who then and there indorsed the said notes to the plaintiff, who sues for the use of the President, Directors, and Company, of the New Orleans and Carrollton Railroad Company. The first note is alleged to be payable six months after the date thereof; and that the defendant is indebted in the amount of the same, with interest thereon from the 8th June, 1838; the second payable twelve months after date and due on the 8th December, 1838; and third payable in eighteen months, and due on the 8th June, 1839.

The petition was filed the 20th February, 1844. The defendant pleads that the several obligations upon which this suit was instituted were barred by the laws of the land, before the commencement of the action; and further denies that he is indebted to the plaintiff, and denies all and singular the allegations of his petition.

The plaintiff, on the 8th October, 1845, notified the defendant that, upon the trial, he would introduce evidence of the loss of the second note, described in his petition. At the Spring Term, 1847, leave was given to file an amended petition, in which it was averred that the note due twelve months after the date thereof, was then lost and mislaid, and had been so lost and mislaid at the time of bringing the action. The cause came on for trial, and the plaintiff took a non-suit; the judgment thereon was afterwards set aside, and cause continued.

At the Fall Term, 1847, the cause was continued by the plaintiff for the want of evidence to prove the existence of, and to identify the note believed to be lost. At the Spring Term, 1848, the defendant filed an amended answer, in which he merely re-iterated his former plea of the statute of limitations. The cause was tried at this Term before a jury, and verdict found for the defendant.

There appear on the record two bills of exceptions.

The Court was asked by the plaintiff's counsel to charge the jury, that a suit, commenced on a note due 1st June, 1838, brought in February, 1844, is not barred by the statute of limitations; that a suit commenced as above, on a note due the 5th December, 1838, is not barred by the statute of limitations; that a suit, commenced as above, on a note due 1st June, 1839, is not barred by the statute of limitations. Which, being declined, the plaintiff tendered his bill of exceptions.

In the second bill of exceptions, it is stated that the Judge charged the jury, that if they believed that the notes sued on were due and payable for more than four years before the suit was brought, the same was barred by the statute of limitations. And to this the plaintiff took his exceptions. There was no statement of facts.

Robinson & Crittendon, for plaintiff in error.

B. Gillespie and J. Hancock, for defendant in error.

HEMPHILL, CH. J.

There is no statement of facts nor copies of the notes sued upon embraced in the record, and it is contended by the counsel for the appellee, that the charges given and refused, stand as abstract propositions, the applicability of which to the facts adduced in evidence, it is impossible to determine, and, consequently, whether the legal rights of the plaintiff were really prejudiced by the charge refused or by that which was given.

The first question which arises, is whether any evidence was required to establish the facts averred in the petition.

The statute, Sec. 86, p. 386, declares “that when any petition, answer, or other pleading shall be founded, in whole or in part, on any instrument or note in writing, charged to have been executed by the other party, or by his authority, and not alleged therein to be lost or destroyed, such instrument or note in writing shall be received in evidence, without the necessity of proving its execution, unless the party by whom, or by whose authority, such instrument or note in writing is charged...