Edwards v. James

• Decision Date: 01 January 1854
• Citation: 13 Tex. 52
• Parties: EDWARDS v. JAMES, ADM'R.
• Court: Texas Supreme Court

13 Tex. 52

EDWARDS

v.JAMES, ADM'R.

Supreme Court of Texas.

1854.

Error from Bexar. Action for the recovery of land by the plaintiff in error against the defendant in error as administrator of J. R. Black, deceased. Judgment by default November 12th, 1852. Writ of inquiry executed, and verdict and judgment for plaintiff December 11th following. Motion for new trial filed on the 13th. On the 14th Judge Hancock, who was sitting for the regular Judge of the district, signed the minutes of his proceedings and vacated the bench, and on the 15th Judge Devine, the regular Judge of the district, took the bench. He subsequently granted the new trial. At the trial which was afterwards had, the Court excluded the plaintiff's evidence of the title, and the defendant had judgment. The facts, on this point, are stated in the opinion of the Court.

I. A. & G. W. Paschal, for plaintiff in error.

LIPSCOMB, J.

There are only two grounds of error that we regard as material, presented by the record in this case. The first is the granting a new trial on the application of the defendants.

There was a judgment by default, and a writ of inquiry executed before Judge Hancock, holding the Court for Judge Devine. Judge Hancock had signed the minutes of the proceedings before him, and Judge Devine taken his seat on the bench, before the motion of the defendants for a new trial had been acted upon; and the motion was granted by the latter. Plaintiff's counsel allege that it was not competent for Judge Devine, who was not presiding when the judgment was rendered. It would be more regular, where one Judge sits for another, for him to act upon all matters or motions arising out of his proceedings, before he leaves the bench; but it is not indispensible that it should be so done, and is anything if left undone when he leaves the bench, and another Judge takes the seat before the expiration of the Term, the Judge last taking the bench can dispose of, and act on such matters, if he was competent to have tried the case out of which the motion arose. To make the case most strong for the plaintiff, suppose the Term had expired and the Court adjourned, there can be no question but the Judge of the district, Judge Devine, could, on sufficient grounds, have granted a new trial, in the exercise of equity jurisdiction. (Gross v. McClaran, 8 Tex. R., 341; Stewart v. Jones, Adm'r, 9 Id., 469; Mussina v. Moore, Supra.)

The second ground of error we propose examining is the ruling of the Court in excluding from the jury the plaintiff's evidence of the location by him, of good and valid land certificates, on the land sued for. These locations were made in 1847, and shortly after a suit was brought on them for the land in controversy in this case, which was finally decided in this Court in favor of the defendant, and this suit was commenced for the same land within the time prescribed by the statute within which a second suit is allowed to be brought ...