Cheatham v. Riddle

• Decision Date: 01 January 1854
• Parties: CHEATHAM v. RIDDLE.
• Court: Texas Supreme Court

12 Tex. 112

CHEATHAM

v.RIDDLE.

Supreme Court of Texas.

1854.

Where the plaintiff sues as administrator, the general denial of all the allegations in the petition does not raise an issue whether the plaintiff is administrator, as alleged. (Note 31.)

The jury are not required to believe a witness, although he make a plain statement of what is not impossible, and is neither impeached nor contradicted, but may discredit him on account of the manner of giving the testimony, the attendant circumstances (neither of which appear upon the record) and the unnaturalness and improbability of the statement; and this, too, it seems, where the witness is the witness of the party against whom the statement militates.

Error from Titus. The defendant in error, as administrator of Elliott, sued the plaintiff in error for services rendered the defendant by the plaintiff's intestate, as his overseer. There was in the answer a general denial, but no special denial, or plea putting in issue the right of the plaintiff to sue as administrator. The proof was, that the deceased resided with the defendant, and served him, at times working upon his farm, and generally superintending his negroes; but he had once said to a witness who inquired what he got for the way in which he worked, that he did not work for wages, but for his victuals and clothes, and that was all he wanted; that he worked for the defendant only to please himself.

There was a verdict for the plaintiff, a motion for a new trial overruled, judgment for the plaintiff, and the defendant brought a writ of error.

The errors, assigned and relied on, were 1st, That there was no evidence of the right of the plaintiff as administrator to maintain the action. 2d, That the evidence did not warrant a recovery for services rendered.

T. J. & J. H. Rogers, for plaintiff in error. The Court below should have granted a new trial in this cause, because, as is alleged in the motion, the verdict was contrary to the evidence.

I. Under this head we will consider, first, the second ground in the assignment of errors, that the plaintiff failed to prove that he was the administrator of Benjamin Elliott, in whose right he sues. There was no plea in abatement that the plaintiff was not the administrator, as he alleged, nor any other plea that put that fact and the fact of the death of Benjamin Elliott in issue, except the general denial of all the allegations in the petition, of which these were part; and under this general denial of all the allegations in the petition, it is imagined that the right of the plaintiff to sue is put in issue. “A general traverse or denial in our system requires the plaintiff to prove the truth of every averment material to his cause of action.” (Mims v. Mitchell, 1 Tex. R., 443-7.) The right of the plaintiff to sue is certainly an averment material to his cause of action, and if so, it is put in issue by the general denial, and under the authority of Mims v. Mitchell it must, in this case, be proved by the plaintiff. It is necessary that the plaintiff should ““show a right to sue.” (Burton v. Anderson, 1 Tex. R., 97.) And if it is necessary to aver the fact, it is of course necessary to prove it. This would not seem to require authority, but see Mims v. Mitchell. Again, The Bank v. Simonton, 2 Tex. R., which was a suit brought by a foreign corporation in their corporate names, and in which they did not set out that they were a corporate body, the Court decided that “the petition is insufficient in law in not setting forth and showing by appropriate averments that the plaintiffs were a corporation duly constituted by lawful authority,” &c., and this was under a general demurrer. (p. 531-40-1.) And in Crosby v. Houston, 1 Tex. R., the right of a plaintiff to sue as trustee was allowed to be objected to on error, though the objection was not made below. (p. 220.) Then why should the right of a plaintiff to sue as an administrator form an exception to the general rule, that the plaintiff must aver and prove his right to sue? If a person claims as heir of another, must he not aver and prove that he is such heir? Then why, when he claims as the administrator of another, must he not aver and prove that he is the administrator? There is no difference in principle in the two cases.

But it will be admitted, (it is imagined,) that he must aver that he is the administrator to entitle him to recover. Then must he not prove it, for there is no sounder rule in pleading than this, that it is not necessary to aver what it is not necessary to prove.

But it is thought by some that the issue on the plaintiff's right to sue as an administrator must be made by a plea in abatement. We do not see why this is so, more than in the cases before cited, and the authorities cited militate against the proposition. The plea that a person is not an administrator, is not a plea of disability to the person like infancy, coverture, or alien enemy, but a plea in bar of the plaintiff's right to sue under any circumstances and at any time, which is a plea in bar. (See 6 Ala. R., 509; 1 Pike R., 349; 5 Blackf., 470; 1 Saund., 274, n. 3; 3 McCord; 2 Brevard; 7 Ala. R., 814.)

So, also, this plea was put in without affidavit (which is necessary in case of a plea in abatement) in the case of Lovering, Ad'mr, v. McKinney et al., 7 Tex. R., 521, and it was held by the Supreme Court to be well pleaded. The same was held in the case of Boyle v. Forbes, Adm'r, 9 Tex. R., 35. It is then not a plea in abatement but a plea in bar; and hence, under our system, it can be set up under the general denial, since this puts in issue every averment in the petition material to the cause of action.

As therefore there was no proof of the plaintiff's right to sue, a new trial should have been granted, and the judgment ought to be reversed.

II. The verdict was also contrary to the evidence in this, that it was proved by one of the plaintiff's own witnesses, Livingston S. Kenner, that on one occasion he and Elliott (the plaintiff's intestate) were off on a camp hunt, and being surprised at the way Elliott managed along, he asked him what he was getting for the way he worked; and that Elliott replied that he had lived with Cheatham (the defendant) twelve or fourteen years, and that he did not work for wages, but only worked for enough to live on; and that he was not to get anything for his work except what he lived on and wore, and that was all he wanted, and that he worked for Cheatham...