Cauble v. Key
| Decision Date | 24 October 1923 |
| Docket Number | (No. 6647.) |
| Citation | 256 S.W. 654 |
| Parties | CAUBLE v. KEY. |
| Court | Texas Court of Appeals |
Blanks, Collins & Jackson, of San Angelo, for plaintiff in error.
Anderson & Upton, of San Angelo, for defendant in error.
Statement.
On September 24, 1920, S. S. Key sued C. M. Cauble, in the county court of Tom Green county, claiming a balance due him by Cauble of $470.50, under a verbal contract to work on Cauble's ranch. He did not allege the residence of defendant, but instead alleged that he was "at least temporarily in Tom Green county, Tex., where service may be had upon him." Defendant was served with process in Tom Green county on November 14, 1921, and, failing to appear or answer, judgment by default was rendered against him for the amount sued for, on January 3, 1922. On March 31, 1922, at the same term of said court, defendant filed his amended motion to set aside said judgment and grant him a new trial, which was, on the same day, overruled. The case is before us on writ of error under assignments of error and bills of exception.
Opinion.There is no statement of facts. The bills of exception undisputedly show that on the trial the plaintiff was the only witness, and that he was not sworn. By his first and fifth assignments plaintiff in error contends that, being an unliquidated demand, this does not comply with article 1939 of the Revised Civil Statutes, which requires the court, in such cases, to "hear evidence as to the damages and shall render judgment therefor," and that the trial court therefore committed fundamental error in his failure to comply with the law.
The defendant in error urges that, in the absence of a statement of facts, this court is not authorized to go into the sufficiency of the evidence upon which the original judgment was rendered. This has been repeatedly held by the appellate courts, and we are not to be understood as deciding to the contrary in the case before us. The question here, however, is not one of the sufficiency of evidence or of its admissibility, but rather whether the trial court complied with the law in hearing any evidence at all. "Testimony" has been defined as a statement made by a witness under oath in a legal proceeding. 38 Cyc. 248; 4 Words & Phrases, Second Series, p. 891; 24 Cyc. 2410. We think that the administration of the oath by a competent officer is a fundamental and essential requirement to give testimony its binding force. The Constitution (section 5, art. 1) clearly implies that such is a prerequisite to the giving of evidence. Certainly no one should be allowed to invoke the aid of the courts of the land to litigate his rights, procure relief through unsworn testimony, and, if such were false, be immune from punishment. True, it has been held by the Supreme Court of the state that where a party sits and allows an unsworn witness to testify without objection, he thereby waives such irregularity. Trammell v. Mont, 68 Tex. 210, 4 S. W. 377, 2 Am. St. Rep. 479. But such can apply only where both parties are before the court and have opportunity to invoke its aid in the matter. In no event could the defendant in this case be held to have waived swearing the witness. Even though he defaulted, he had a right to presume that the law would be complied with and only competent and legal evidence admitted. It is an essential element of waiver that a party must voluntarily and intentionally surrender a known right. 4 Words & Phrases, Second Series, p. 1223; 40 Cyc. 252; 27 R. C. L. 904. Certainly a party cannot be held to have waived something he knew nothing about. In our opinion, there was no legal evidence heard by the court, as required by article 1939, Revised Statutes, and we sustain these assignments of the plaintiff in error.
By his second assignment plaintiff in error complains that plaintiff below did not comply with article 1827, Revised Statutes of 1911, in that he failed to allege the residence of the defendant, or that same was unknown to him. Article 1827 provides:
"The petition shall set forth clearly the names of the parties and their residences, if known, with a...
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Beck v. State
...Where a party sits and allows an unsworn witness to testify without objection, he thereby waives such irregularity. Cauble v. Key, 256 S.W. 654 (Tex.Civ.App.1923). And in Trammel v. Mount, 4 S.W. 377, 379 (Tex.1887), the Texas Supreme Court stated: "The appellant allowed the witness to give......
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... ... 992] of the facts ... asserted. State v. Salisbury (Mo.), 43 S.W. 2d 1021, ... 1024[3]; State v. Duncan, 116 Mo. 288, 308(IV), 22 ... S.W. 699, 704(4); Re Eakins' Est., 64 Mont. 84, 208 P ... 956, 959[4]; State v. Lowry, 42 W.Va. 205, 24 S.E ... 561, 562; Cauble v. Key (Tex. Civ. App.), 256 S.W ... 654, 655[1]. Implicit in the statutory requirements for ... notice is a reasonable opportunity to the litigant receiving ... notice for the protection of his interests at the taking of ... the depositions. Among the factors for determining an ... ...
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...S.W. 699, 704(4); Re Eakins' Est., 64 Mont. 84, 208 Pac. 956, 959[4]; State v. Lowry, 42 W. Va. 205, 24 S.E. 561, 562; Cauble v. Key (Tex. Civ. App.), 256 S.W. 654, 655[1]. Implicit in the statutory requirements for notice is a reasonable opportunity to the litigant receiving notice for the......
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