Brown v. Perez

• Decision Date: 02 October 1895
• Citation: 32 S.W. 546
• Parties: BROWN et al. v. PEREZ.<SMALL><SUP>1</SUP></SMALL>
• Court: Texas Court of Appeals

32 S.W. 546

BROWN et al. v. PEREZ.¹

Court of Civil Appeals of Texas.

October 2, 1895.

Appeal from district court, Atascosa county; M. F. Lowe, Judge.

Action of trespass to try title by Jesus Perez against J. N. Brown and others. Judgment for plaintiff, and defendants appeal. Affirmed.

Simpson & Onion, for appellants. B. F. Ballard and Thos. H. Franklin, for appellee.

FLY, J.

This is an action, instituted by appellee, of trespass to try title to a league and labor of land originally granted to Diego Perez. The jury returned a verdict for appellee. This is a third appeal. Brown v. Perez, 79 Tex. 157, 14 S. W. 1055, and 25 S. W. 980. It was admitted that appellee was the sole heir of Diego Perez; the only contested point in the case being as to the genuineness of a deed purporting to have been made by Jose de Jesus Perez to one A. Superviele. Appellants claimed and attempted to show that Jose de Jesus Perez and appellee were one in identity, and that he executed the deed to Superviele. Appellee claimed that his name was not that signed to the deed, and that he did not execute the same. We think that we are justified in concluding, as did the jury, that the deed to Superviele was not executed by appellee, and that the title to the land is in him.

The first assignment of error assails the action of the court in admitting the testimony of the witnesses Salvador de la Garza and Rafael de la Garza as to the reputation of Esteban de la Garza for truth and veracity, because they testified they did not know where the witness now resided, and could not qualify themselves to testify as to his reputation. The objection goes to the weight, rather than the competency, of the testimony. One of the witnesses testified that he had known Esteban de la Garza since 1863, and did not know where he had resided since that time; and the other witness swore that he knew Esteban de la Garza 20 or 25 years ago, but had not known him for many years. These witnesses testify to a long acquaintance with Esteban de la Garza; and, while the testimony may have been weakened by the lapse of time since they knew his reputation, yet it was admissible. Mynatt v. Hudson, 66 Tex. 66, 17 S. W. 396. The testimony was also admissible in rebuttal of the testimony of Buquor, who swore that the reputation of Esteban de la Garza for truth and veracity had always been good.

The fifth and sixth assignments of error bring in review language used by counsel in his closing remarks to the jury. The remarks in regard to the man Superviele, to whom the deed alleged to be a forgery was made, were perhaps justified by the record. Appellee swore that he had never signed the deed made to Superviele, but that it was an absolute forgery, and his counsel would be justified in denouncing him. However, the remarks were withdrawn, and the jury were instructed not to consider them. The remarks in regard to the wealth of defendants, or one of the defendants, as modified by the judge, were reprehensible, and should not have been indulged in. There was, however, some justification for them in the fact that they were made in reply to argument of counsel for appellants that the land was worth from three to five dollars an acre, and that his clients had spent their money, and the great loss they would incur if there was a verdict for appellee, and that the zeal of appellee's counsel was due to the fact that they would get a part of the land in the event of a recovery. Upon objection being made, the court rebuked counsel, and directed him to keep in the record. This is the third trial of this cause, the jury having each time returned a verdict for appellee, and there is nothing that indicates that the intemperate remarks of counsel had any effect in shaping the verdict, and we are not disposed to reverse the judgment on this ground. It is said by the supreme court: "It is not every case in which this court will reverse for the use of improper language by counsel for the successful party in his argument to the jury; but the evidence will be looked...