Chapman v. Allen

• Decision Date: 01 January 1855
• Citation: 15 Tex. 278
• Parties: LOUISA M. CHAPMAN AND OTHERS v. JAMES L. ALLEN.
• Court: Texas Supreme Court

15 Tex. 278

LOUISA M. CHAPMAN AND OTHERS

v.JAMES L. ALLEN.

Supreme Court of Texas.

1855.

See this case for where it was held that the certificate of the officer who purported to take the deposition failed to state that the witness swore to and signed the answers before him.

Where objection was made to the admission of a deposition, on the ground that it was not properly certified, and the bill of exceptions disclosed that the objection was resisted on the ground that it had only been filed a few minutes before the trial commenced, and the objection was sustained, it was held, on appeal, that the appellant could not be heard to reply to the objection that no notice thereof was given to him before the trial commenced. But see special circumstances.

Where a deposition was excluded after the trial commenced, on account of a defect in the certificate, it was held that the court did not err in refusing leave for the officer who took the deposition (the chief justice of the county) to amend it.

Where the separate property of the wife has undergone mutations, it is indispensable, to maintain its separate character, that it be clearly and indisputably traced and identified. [7 Tex. 6;8 Tex. 239;11 Tex. 324;28 Tex. 457.]

Property acquired by purchase during coverture, by either party, is presumed to be community property, whether the consideration was services rendered or money paid by either party. [11 Tex. 314;12 Tex. 43;23 Tex. 173.]

The wife, without being joined or authorized by her husband, may claim property levied on by process against the husband, and give bond to try the right thereto.

Where, in the trial of the right of property, there is no issue as to the separate value of the property, and no objection in the court below on the subject, it cannot be objected in the supreme court, that the bond stated the aggregate value of the property and that the judgment pursued the bond.

Appeal from Gonzales. Trial of the right of property in two buggies and five horses, attached as the property of F. M. Chapman at the suit of the appellee, and claimed by the appellant, the wife of the said F. M. Chapman. The sheriff appraised the property in bulk at $425, and the appellant gave bond, with sureties, in the usual form, without being joined or authorized by her husband. An exception was afterwards filed by the appellant, claiming that the bond was void, on the ground that she was a married woman, and was not joined nor authorized by her husband. There was no entry made of any disposition of the exception.

The parties went to trial, and the claimant gave in evidence a bill of sale from W. J. Howerton to the claimant for property corresponding to the description of the property in controversy, purporting to be in consideration of valuable services rendered by the claimant, and one dollar in hand paid.

The plaintiff, Allen, then proved by the sheriff that he found the property in the possession of F. M. Chapman, the husband; that the aggregate value thereof was $425. These were all the facts proved, as certified by the judge, the parties not being able to agree on the same.

The court instructed the jury that if they believed from the evidence that the property in controversy was the same embraced in the deed from Howerton to the claimant, it would be community property, and they should find for the plaintiff.

It appeared from a bill of exceptions that the claimant had caused the deposition of one Mrs. Louisa Nelson, who resided in Gonzales county, to be taken. The substance of the deposition was, that property similar to that in controversy had been purchased by the said F. M. Chapman at Indianola, from one Jno. A. Settle, with funds which the claimant had received from her guardian as her inheritance. The plaintiff had filed a motion to strike out the answers of the witness, on the ground that the officer before whom they were taken did not certify that the witness came before him and answered the same.

The bill of exceptions stated that when the deposition was offered in evidence, the plaintiff objected “because the certificate of the officer who had taken the same was not such as the statute required; the defendant resisted the objection on the ground that it had been filed a few minutes before the trial, and that all objections to the manner and form of taking depositions should be filed one day before the trial commences, and that the certificate, taken as a whole, was sufficient.” The deposition was filed April 19, 1855; the motion to strike out the answers was filed April 23, 1855; but it did not appear on what day the trial commenced--nor was there any date to the verdict or judgment.¹ The answers to the interrogatories commenced “State of Texas. County of Gonzales. James L. Allen v. Lucinda M. Chapman. Answers to interrogatories propounded to Louisa Nelson and subscribed, acknowledged and sworn to by the said Louisa Nelson before me, Edm'nd Bellinger, chief justice of said county, on the 16th day of April, A. D. 1855. Int. 1st. I am,” etc., signed by the witness; then a certificate commencing “State of Texas. Gonzales county. I, Edm'nd Bellinger, chief justice of Gonzales county, hereby certify that the foregoing answers to the interrogatories and cross-interrogatories herewith inclosed with a commission to me directed, emanating from the district court of Gonzales county, were signed and sworn to by L. Nelson, a female witness in the suit hereinbefore referred to. In witness,” etc.--signature and official seal. The court sustained the objection, and the defendant excepted. The defendant then called to the stand the officer before whom the deposition was taken, and asked leave for him to amend his return. The plaintiff objected; the court sustained the objection, and the defendant excepted.

There was a general verdict for the plaintiff, and a judgment against the defendant and her sureties for the value of the property as stated in the bond.

Stewart & Mills, for appellant.

I. The objection was that the officer's certificate omitted the words, ““before me.” How could the testimonium clause of the certificate be made and his seal of office annexed, if the witness had not signed and sworn to the answers before him? But the caption of the answers, penned by the chief justice, shows that the answers were subscribed and sworn to before him, which relieves the point of all doubt; in his certificate he refers to the caption.

But the deposition should be admitted, because no notice of the objection was given to the opposite counsel before the trial of the suit commenced. (Hart. Dig. art. 733.)

II. The court below should have permitted an amendment of the officer's return or certificate. (Hampton v. Dean, 4 Tex. 455.)

III. The statement of the facts contains no evidence that the property in controversy was the property mentioned in Howerton's deed to Mrs. Chapman.

The charge assumes the very fact in issue, that the property mentioned in Howerton's deed was community property. The consideration of the deed is two-fold, services and money.

IV. The act for the trial or right of property provides that the claimant shall give bond, etc., etc. This should be construed in subordination to other principles; for surely an infant, or person non compos mentis, could not give a return bond, though the property taken in execution might belong to them.

Can the wife execute a return bond without the union of her husband? If the bond was null, it was certainly error in the court below to render judgment on the bond.

V. The sheriff should have assessed specifically each article replevied. (Blakey's Adm'r v. Duncan, 4 Tex. 184.)

Waul & Wilson, for appellee.

I. The officer should have certified that the answers were signed and sworn to before him. (Hart. Dig. art. 727.)

There was no error in refusing permission to the chief justice to amend his certificate, as he was no officer of the court. The amendment was asked too late.

II. There was no error in the...