Cotton v. Jones
| Decision Date | 01 January 1872 |
| Parties | J. B. COTTON, EXECUTOR, v. D. C. JONES. |
| Court | Texas Supreme Court |
1. After both parties have announced their evidence closed, and the argument of the cause has commenced, it is not error to refuse to permit further evidence to go to the jury.
2. Neither the filing of the petition, the reading of the same to the court, nor the fact that it is a matter of record in the court, will authorize the jury to consider the petition or any allegation therein contained, or indorsement thereon, as in evidence before them, unless the same has been submitted to them as evidence.
3. In an action against an executor upon an account presented to and rejected by him, the question of limitation may be properly brought before the court by demurrer to the plaintiff's petition--it appearing in the petition that more than three months had elapsed after the presentation and disallowance, and before the institution of the suit, and no good reason appearing in the petition, why the suit was not brought within the time allowed by law.
4. Absence of an executor from the State, after his rejection of a claim, is no excuse for the failure of a creditor to sue him within the time limited by law. Article 24, Paschal's Digest, does not apply. Otherwise, it seems, if the claim had never been presented to the administrator for allowance.
APPEAL from Milam. Tried below before the Hon J. M. Onins.
The facts of the case are sufficiently stated in the opinion of the court.
R. J. Hill, for appellant.
W. H. Hamman, for appellee.
We think there was no error in the rulings of the court, refusing to admit further testimony to the jury, after both parties had announced their evidence closed, and after the argument of the cause had commenced. There should be a limitation, especially in civil cases, to the privilege of introducing testimony on either side, and the one established by the court in this cause, is in accordance with reason, as well as the usual practice.
The defendant had neglected to offer in evidence the plaintiff's petition, and the file marks thereon, in order to prove the date of the commencement of this suit, and thereby establish the fact, for the consideration of the jury, that this suit had not been brought within three months after the rejection of the account sued on, by the executor. The filing of the petition, or the reading of the same to the court, or the further fact that the petition is a matter of record in the court, will in no event authorize the jury in considering the petition or any allegations therein, or indorsement thereon, as in evidence before them, unless the same has been specially presented as testimony, the same as any other written evidence. The petition not having been presented to the jury in evidence, the indorsement thereon was properly excluded from their consideration by the court. But it was properly before the court, and upon demurrer to the sufficiency of the petition, every fact and allegation which it contained was legitimately the subject of consideration by the court. The defendant filed a demurrer and special exceptions to the petition and the cause of action as therein set forth, which demurrer and exceptions explicitly set forth the fact, “that the account upon which the plaintiff brings his suit is barred by the statute requiring...
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Smith v. Smith
...N.E. 638; Smith v. Arnold, 1 Lea (Tenn.) 378; Wilkinson v. Winne, 15 Minn. 159 (Gil. 123). And see French v. Davis, 38 Miss. 218; Cotton v. Jones, 37 Tex. 34.' the court below was right in its ruling in that regard, in view of the construction placed on section 6458 of the statutes of Monta......
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Askey v. Power
...date, the other papers showing its incorrectness should be sent up with the record. * * * in so far as the opinion in the case of Cotton v. Jones, 37 Tex. 34, intimates that it is necessary to introduce in evidence file marks upon a petition to show the date of institution of the suit, it c......
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Pondrom v. Gray
...to offer evidence at the proper time, it was not error to refuse to admit it during the argument of the case." See, also, Cotton v. Jones, 37 Tex. 34; Pontiac Buggy Co. v. Dupree, 23 Tex. Civ. App. 298, 56 S. W. 703; St. Louis S. W. Railway Co. v. Johnson (Tex. Civ. App.) 94 S. W. By the se......
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Braddock v. Brockman
...it was its duty to look to the superseded pleadings in determining that question. The Supreme Court of this state has so held in Cotton v. Jones, 37 Tex. 34; Hutchins v. Flintge, 2 Tex. 473, 47 Am. Dec. 659; T. & N. O. Ry. Co. v. Speights, 94 Tex. 350, 60 S. W. 659. See, also, Stewart v. Ro......