Bennett v. Jackson, 2523.

CourtCourt of Appeals of Texas
Citation172 S.W.2d 395
Docket NumberNo. 2523.,2523.
PartiesBENNETT et al. v. JACKSON et al.
Decision Date20 May 1943

Appeal from District Court, Limestone County; Lex Smith, Judge.

Suit by Mrs. Sam Bennett and others against John Franklin Jackson and others to set aside a prior order admitting to probate the purported will of B. N. Jackson, deceased. An adverse judgment of the county court was appealed by plaintiffs to the district court. From a judgment denying relief, plaintiffs appeal.

Affirmed.

Martin, Moore & Brewster, of Ft. Worth, W. M. White, Jr., of Mexia, Hill D. Hudson, of Pecos, and Harris Brewster, of Ft. Worth, for appellants.

Scott Reed, L. W. Shepperd, and Bradley & Bradley, all of Groesbeck, for appellees.

HALE, Justice.

Appellants instituted this suit in the County Court of Limestone county against Franklin Jackson and others, seeking to set aside the prior order of that court admitting to probate the purported will of B. N. Jackson. The action was grounded upon allegations that the will was not written wholly in the handwriting of the testator and was not signed by him. From an adverse judgment in the County Court, appellants duly perfected their appeal to one of the District Courts of Limestone county where the case was tried de novo and resulted again in judgment against them. On appeal to this court the judgment of the District Court was reversed and the cause remanded on account of improper argument of counsel. See Bennett v. Jackson, Tex. Civ.App., 157 S.W.2d 158.

After the cause was remanded appellants filed and seasonably presented at the present trial their verified application for a change of venue, alleging as ground therefor that "there exists in this county a combination against the plaintiffs instigated by influential persons, by reason of which plaintiffs cannot expect a fair and impartial trial in this county." Appellees duly contested the application, denying under oath the truth of the allegations therein contained and pleading affirmatively that the means of knowledge of affiants in the application "is not such as to enable them to honestly, intelligently or correctly swear to the matters therein stated, which matters as aforesaid are not true and no reason exists why the plaintiffs cannot obtain a fair and impartial trial in Limestone county, Texas." The issue thus formed was tried by the judge, the application was refused and appellants excepted. Thereupon the case was tried on its merits to a jury. Upon findings that the purported will was wholly written in the handwriting of the testator and signed by him, the court again rendered judgment denying any relief to appellants and hence this second appeal.

Under appropriate points in their brief appellants contend that the judgment now appealed from should be reversed because the court erred (1) in refusing their application for a change of venue, (2) in overruling their challenge for cause directed against each of sixteen members of the jury panel, (3) in permitting each of eight witnesses to testify to hearsay statements made by the testator to them during his lifetime, in substance, that he was leaving the bulk of his property to Franklin Jackson, and (4) in permitting each of seven non-expert witnesses to testify that the handwriting in the body of the purported will and the signature thereto was that of the testator.

The ultimate purpose of all rules of procedure is to secure to every litigant a fair and impartial adjudication of his rights under established principles of substantive law to the end that justice may be done. Rule 1 of Texas Rules of Civil Procedure. In order to accomplish this objective, certain qualifications, prerogatives and responsibilities are definitely required of, vested in and placed upon the trial judge, jury, witnesses, and each participant in all the courts. Reasonable adherence to the established rules by each and all, consistent with a proper exercise of sound judicial discretion, is indispensable to the administration of justice according to law as distinguished from justice according to the personal opinion of the individual attempting to assist in its administration. When a court of competent jurisdiction has rendered final judgment in a civil cause, it must be presumed a priori that the ends of justice have been met through the means of a fair and impartial trial, unless on appeal therefrom a prejudicial infraction is shown against some existing rule of procedural or substantive law. Rules 434 and 503 of Texas Rules of Civil Procedure.

Under Rule 257, which is the same as the pre-existing provisions of Article 2170 of Vernon's Tex.Civ.Stats., a change of venue may and should be granted in a civil cause upon the uncontested application of either party therefor, if the application is duly verified and shows the existence of facts inconsistent with the right of the applicant to secure a fair and impartial trial in the county where the suit is pending. However, under Rule 258, which is the same as repealed Article 2171, if the credibility of the persons making such application, or their means of knowledge or the truth of the facts therein set out are attacked by the affidavit of a credible person, then the issue thus formed must be tried by the judge. Moreover, when the application is duly made and contested in compliance with the rules, as was done in this case, the trial judge thereupon becomes vested with broad discretionary powers and charged with grave duties in determining from the evidence adduced at the hearing whether the application should be granted or refused. An abuse of discretion on the part of the trial judge is properly subject to review by a superior court, but unless an abuse of discretion is shown the decision below should not be disturbed on appeal. Freeman v. Ortiz, Tex.Civ.App., 136 S.W. 113; Id., 106 Tex. 1, 153 S.W. 304; Trammell v. Currie, Tex.Civ.App., 261 S.W. 827; Herd v. Wade, Tex.Civ.App., 63 S.W.2d 253 (error ref.); Gannaway v. Trinity Universal Ins. Co., Tex.Civ.App., 85 S.W.2d 345 (error ref.); Taylor v. Batte, Tex. Civ.App., 145 S.W.2d 1116.

More than fifty witnesses were examined at the hearing on appellants' contested application, their testimony covering 632 pages in the statement of facts. Obviously it would not be practicable to set forth a complete resume of all the evidence introduced. The testimony of the jury panel regularly drawn for the trial of the case showed that a majority of the array had resided in the county many years, knew Franklin Jackson, had either bought or sold cattle at some time in his auction ring and some of them were his personal friends; the majority were well acquainted with one or more of the attorneys for appellees and some of them had been represented by one or more of such attorneys; most of the panel had heard about the case, some had heard it discussed, others had read about it in the newpapers, and some knew the results of the former trial; most of them knew one or more of the material witnesses who had testified on the former trial and some had transacted business with several of such witnesses. The testimony of the several attorneys for appellees showed how long each had practiced law in that county and in a general way the nature and extent of the professional and business connections and acquaintances of each. J. E. Bradley had practiced law over forty years, had been County Attorney and County Judge, was at that time Mayor of Groesbeck, vice-president of the Farmers State Bank in Groesbeck, president of the First National Bank in Thornton, owned several farms and was well acquainted throughout the county; B. L. Bradley had practiced approximately twelve years, was president of the Citizens National Bank in Groesbeck and well acquainted over the county generally; Scott Reed was born and reared in the county, was a Captain in the Army during World War 1, was a former County Attorney and at the time of the hearing was a member of the local Draft Board and well connected throughout the county; Carl Cannon had been County Judge for two terms and was a candidate for re-election at the time of the hearing; L. W. Shepperd had practiced law at that bar for 24 years, was a former County Attorney, had tried many contested cases and was well and favorably known throughout the county. It was shown that numerous witnesses who testified on the former trial in behalf of appellees were also substantial, well known citizens, among them being the County Tax Collector and Assessor, the County Auditor, a court reporter, the son of a former sheriff, a physician, a merchant, and certain bank employees. It must suffice to say that Franklin Jackson, his attorneys and many of the witnesses who testified in his behalf were shown to be well and favorably known over the county generally, they being separately and collectively among the most prominent and influential citizens in that section of the state.

However we do not think the good reputation or merited prestige of a defendant, or of his attorneys or witnesses, or a just combination thereof, necessarily constitutes sufficient ground under the provisions of Rules 257 and 258 to require the trial judge, solely by reason thereof and independent of any other considerations, to change the venue out of the county where the defendant resides. In our opinion such a construction would not be in harmony with sound public policy or with other established rules and principles of law. A good name ordinarily is and rightfully should be a benefit rather than a burden to its bearer by virtue of which he should be protected rather than penalized. A recognition of this axiom was doubtless one of the sound reasons which prompted the enactment of what is now Art. 1995 of Vernon's Tex.Civ.Stats., by which it is provided that no inhabitant of this state shall be sued out of the county in which he has his domicile except in certain cases. As said by the...

To continue reading

Request your trial
36 cases
  • Txi Transp. Co. v. Hughes, 2-04-242-CV.
    • United States
    • Court of Appeals of Texas
    • May 24, 2007
    ...rule 257 motion for a change of venue. Glover v. Moore, 544 S.W.2d 777, 777-78 (Tex.Civ.App.-Eastland 1976, no writ) (citing Bennett v. Jackson, 172 S.W.2d 395, 398 (Tex.Civ.App.-Waco 1943, writ ref'd w.o.m.)). When a rule 257 motion to transfer venue is attacked as required under rule 258 ......
  • In re Fedex Ground Package Sys., Inc.
    • United States
    • Court of Appeals of Texas
    • May 28, 2020
    ...11 Tex. at 777 ); Wheeler , 8 Tex. at 231 ("There seems no ground why the process should be thus incumbered."); and Bennett v. Jackson , 172 S.W.2d 395, 397 (Tex. Civ. App.—Waco 1943, writ ref'd w.o.m.) ("Reasonable adherence to the established rules by each and all, consistent with a prope......
  • Loyd v. Herrington, 14603.
    • United States
    • Court of Appeals of Texas
    • February 4, 1944
    ...is ours, to the fullest extent. Applicable to what we have just said, we think the court made a wholesome observation in Bennett v. Jackson, Tex.Civ.App., 172 S.W.2d 395, writ refused, want of merit, where it was held that when a court of competent jurisdiction has rendered its judgment, it......
  • Carver v. Huff
    • United States
    • Court of Appeals of Texas. Court of Civil Appeals of Texas
    • October 10, 1955
    ...proceedings had in the court below. Smothers v. Gawlik, Tex.Civ.App., 214 S.W.2d 894; 3 Tex.Jur. 424, Secs. 302 and 303; Bennett v. Jackson, Tex.Civ.App., 172 S.W.2d 395; Erback v. Donald, Tex.CivApp., 170 S.W.2d 289. In attempting to show affirmatively that an error exists as reflected by ......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT