Beaty v. Yell

• Decision Date: 12 November 1910
• Parties: BEATY v. YELL.
• Court: Texas Court of Appeals

133 S.W. 911

BEATY v. YELL.

Court of Civil Appeals of Texas.

November 12, 1910.

Rehearing Denied December 31, 1910.

Appeal from District Court, Ector County; S. J. Isaacks, Judge.

Action by W. A. Beaty against Percy M. Yell. Judgment for defendant, and plaintiff appeals. Reversed and remanded.

A. S. Hawkins and E. C. Canon, for appellant. Frank A. Judkins, Charley Gibbs, and E. B. Ritchie, for appellee.

DUNKLIN, J.

On February 10, 1904, W. A. Beaty's application to the Commissioner of the General Land Office to purchase four sections of school land was granted. On January 18, 1906, the commissioner declared the award canceled, giving as his reason therefor that Beaty had failed to reside upon the land in the manner and for the length of time required by law. Subsequently the land was awarded to Percy M. Yell upon his application to purchase it. Beaty instituted this suit in the form of trespass to try title to recover the land from Yell, and has prosecuted this appeal from a judgment in favor of the defendant. Under the law the land could be sold to actual settlers only, and, in order to perfect his title, the purchaser, in addition to a compliance with other conditions, was required to reside thereon for a period of three years next succeeding the date of his purchase. Whether Beaty had complied with this requirement was the principal issue tried, and the verdict of the jury was that he had not done so.

Several assignments of error are addressed to rulings of the court excluding various answers of W. A. Beaty to ex parte interrogatories propounded to him by the defendant, in which answers Beaty testified that he resided on the land during various months in the years 1904, 1905, and 1906. The one objection to all the answers was that the same were not responsive to the interrogatories, and the one proposition submitted in appellant's brief under each and all those assignments reads: "An objection that an interrogatory is not responsive goes to the manner and form of taking, and cannot be for the first time presented during the trial of the case."

The scope of those assignments, therefore, is limited by the proposition quoted, and will be disposed of accordingly. It is true that an objection to depositions that they are not responsive to the interrogatories is an objection to the manner and form of taking. Lee & Co. v. Stowe & Wilmerding, 57 Tex. 444; G. C. & S. F. Ry. Co. v. Shearer, 1 Tex. Civ. App. 343, 21 S. W. 133, and authorities therein cited. Article 2289, Sayles' Ann. Civ. St. 1897, reads: "When a deposition shall have been filed in the court at least one entire day before the day on which the case is called for trial, no objection to the form thereof or to the manner of taking the same shall be heard unless such objections are in writing and notice thereof is given to the opposite counsel before the trial commences; provided, however, that such objection shall be made and determined at the first term of the court after the deposition has been filed, and not thereafter." As the record fails to show that the depositions had been on file at least one entire day before the day on which the case was called for trial, the assignments of error complaining of their exclusion are overruled. Seiber v. Johnson Mercantile Co., 40 Tex. Civ. App. 600, 90 S. W. 516.

For the purpose of discrediting the testimony of J. M. Cain, who had been introduced by the defendant, the plaintiff offered in evidence a written statement purporting to have been signed and sworn to by the witness, in effect, that he knew the plaintiff had resided on the land in controversy for the length of time required by law, but the statement was excluded upon defendant's objection. While the witness had not testified directly and pointedly that the plaintiff had not so resided on the...