Cook v. Carroll Land & Cattle Co.

• Citation: 25 S.W. 1034
• Parties: COOK et al. v. CARROLL LAND & CATTLE CO. et al. (COOK et al., Interveners).
• Decision Date: 14 February 1894
• Court: Texas Court of Appeals

25 S.W. 1034

COOK et al. v. CARROLL LAND & CATTLE CO. et al. (COOK et al., Interveners).

Court of Civil Appeals of Texas.

February 14, 1894.

Error from district court, Clay county; George E. Miller, Judge.

Action of trespass to try title, brought by Thomas C. Cook and others against the Carroll Land & Cattle Company and others. M. V. Cook and others intervened and obtained judgment. Plaintiffs bring error. Reversed.

L. C. Barrett, for plaintiffs in error. Swan & Swain, for defendants in error. Rector, Thomson & Rector, for interveners.

Reasons for Reversal.

STEPHENS, J.

Plaintiffs in error, claiming to be the sole heirs of Thomas Cook, brought this suit against the Carroll Land & Cattle Company, and other defendants in possession of the land sued for. Defendants in error M. V. Cook and others, also claiming to be the sole heirs of said Thomas Cook, intervened, and sought to recover the land against both plaintiffs and defendants. They propounded interrogatories to one of the plaintiffs, M. F. Cook, without notice to the other plaintiffs, upon which his deposition was taken. The plaintiffs moved to quash this deposition, because taken without notice, which motion was sustained by the court as to all the plaintiffs except M. F. Cook, who thereupon, through his attorney, took a nonsuit, and entered a disclaimer. Upon the trial before the jury the court permitted this deposition, over the objections of plaintiffs, to be read in evidence, as between the interveners and defendants, and in the charge instructed the jury that they would not consider it, in determining whether or not plaintiffs were the true heirs of the Thomas Cook under whom both plaintiffs and interveners claimed, but that, if they should find that plaintiffs were not the heirs, then they might consider the testimony, as against the defendants.

Plaintiffs in error complain, not only of the introduction of this testimony, but also of the use made of it in argument by the counsel for interveners. Coming, as it did, from one of the original plaintiffs, and contradicting, or tending to contradict, their most important witness (his brother, T. C. Cook) on the vital issue of heirship, the evidence was of the most damaging character. The correctness of the theory upon which the testimony was admitted is not questioned. It is a well-settled rule that, ordinarily, testimony which is admissible for any purpose, or against any party to the suit, should not be excluded, but admitted with the proper limitation. The application of this rule, however, should not be made the pretext for gaining, indirectly, an undue advantage in a trial before a jury, in having testimony introduced of a character which must necessarily have its effect in determining an issue against a party having a right to object thereto, when it could serve no useful purpose against another party to the suit, who is precluded from making such objection. In this case the defendants were entirely without title, except such as the statute of limitation afforded. The real controversy, therefore, was between plaintiffs and interveners. The testimony on the part of either plaintiffs or interveners, in the absence of that of the other, was sufficient to warrant a recovery against defendants, except in so far as it might have been defeated by the statute of limitation. If the jury had found against plaintiffs' claim of heirship without considering the testimony of M. F. Cook, they must necessarily have found, on the same evidence, in favor of that of interveners. Any other verdict should have been set aside. It is idle, we think, to reply that, after the jury had found against the claim of plaintiffs, this additional testimony was needed to enable interveners, as against defendants, to defeat the defense of an outstanding title in plaintiffs. Interveners could not, therefore, have been prejudiced, had it been excluded. It is always difficult, and frequently impossible, to control by the charge the insidious influence of an important fact after it has...