Baldridge v. Penland

• Decision Date: 07 June 1887
• Citation: 4 S.W. 565
• Parties: BALDRIDGE and others v. PENLAND.
• Court: Texas Supreme Court

Page 565

4 S.W. 565

BALDRIDGE and others v. PENLAND.

Supreme Court of Texas.

June 7, 1887.

Appeal from district court, Coleman county.

Frank L. Snodgrass, for appellants. No counsel for appellee.

STAYTON, J.

The appellee presented to the administrator of the estate of Thos. Hays, deceased, a claim for $212.85, which was by the administrator allowed. Before this claim was acted upon by the probate court, the persons interested in the estate filed objections to the allowance of the claim, and their objections were heard, and the claim allowed only for $74.15. From the action of the probate court, rejecting the residue of the claim, Penland appealed, and, on hearing in the district court, the entire claim was allowed. There was a motion filed in the district court to dismiss the appeal, on the ground that the transcript did not show that there had been a judgment rendered in the county court, and on the ground that the appeal-bond was not sufficient. The judgment of the county court is regular in form, but it is contended that the transcript does not show that it was rendered at a regular term of the court. The transcript shows that the judgment was entered on May 6, 1885. Presumptions are to be indulged that the proceedings of courts are regular and in accordance with law, in the absence of proof to the contrary, and there is nothing in the record before us tending to show that the judgment was not rendered at a regular term of the county court. The county commissioners' court had power to fix the times when the court should be held, and it is to be presumed that it was held at the time fixed. Gen. Laws, 1884, p. 36; Gen. Laws, 1885, p. 53.

The objection to the appeal-bond is that the names of the sureties do not appear in the body of the bond, and that it does not appear in the face of the bond that the persons who signed as sureties so intended to be bound. The name of the principal appears in the face of the bond, and a blank was left for the names of the sureties who did sign it, from which it appears that all the persons who signed it, except the named principal, signed as sureties. This was sufficient. The account made the basis of the appellee's claim was proved to have been taken from his books kept as a retail dealer in liquors and keeper of a billiard saloon. Many of the charges are, "To bar, for billiards and drinks," without further specification of items. Some are, "To billiards, games, and drinks," without further specification except as to charges for the separate items of billiards, games, and drinks, which are not further itemized. Others are for cash, one for one bushel of corn, and others for balances. The books of the appellee were shown to have been destroyed by fire, but it was shown that the copy of the account was correctly taken from the books before their destruction. The appellee made oath that his books were correctly kept, and two persons who had served in his establishment, each for a short time, stated that they made some of the entries in the books while so employed, and that the articles embraced in the charges in the books made by each of them were delivered to Hays. It was shown that the other entries in the books were in the handwriting of the appellee, but there was no evidence to show that the entries made by him were contemporaneous with the transaction of the matters to which they relate, nor that any of the articles entered by him were ever delivered. On this evidence the account was objected to on many grounds, among which were that the items were not given, and on the further ground that sufficient proof had not been made to authorize the admission of the books had they been produced. Tradesmen's books of original entries, made in the ordinary course of their business, are admitted in evidence under certain restrictions, on account of the impracticability of making better proof of the sales and delivery of articles in the course of a business conducted from day to day between parties, in reference to which it is not usual to make or evidence contracts in the methods in which isolated transactions are ordinarily transacted or evidenced. Certain facts must be shown, however, before such...