Evans v. Pigg
| Decision Date | 31 October 1866 |
| Citation | 28 Tex. 586 |
| Parties | JOSEPH M. EVANS v. JAMES B. PIGG. |
| Court | Texas Supreme Court |
A motion to dismiss on account of defects in the appeal bond, as, for instance, that the transcript does not show that the bond was approved and filed by the district clerk, must be made at the return term of the appeal, provided the cause was docketed at or before the time allotted for the trial of appeals from the district. Pas. Dig. arts. 1491, 1587, notes 583, 614.
The rule established in Horton v. Bodine, 19 Tex. 283, which has been adhered to since, is as follows: “But for the future the rule of practice shall be, that the motion shall be made at the return term of the appeal, provided the cause be docketed at or or before the time allowed for the trial of appeals from the district court.” Pas. Dig. note 584, p. 369.
Questions which involve the jurisdiction of this court will be considered at any stage of the case, irrespective of the manner in which it was raised, and of the lapse of time since the docketing of the cause. Pas. Dig. note 182, p. 57.
Where the appeal bond embodied in the transcript is in all respects unexceptionable, save that it bears no entry of the district clerk's approval and filemark, the fact that it is embodied in the transcript affords presumptive evidence that it was approved by the clerk; and the date of the bond itself, in the absence of proof to the contrary, by affidavit or otherwise, may well be presumed to be the date of its approval and file. Pas. Dig. art. 1491, note 583.
The defendant was sued for certain cattle purchased by him from their former owner. The plaintiff claimed the cattle under a prior purchase from the agent of the same former owner, and adduced proof of his purchase, and that he paid for the cattle in a debt due him by the agent and his principal, the former owner of the cattle. The defendant introduced the agent as a witness, for the purpose of disproving the plaintiff's alleged purchase: Held, that the witness was not disqualified by reason of interest, inasmuch as, if the object of his introduction were accomplished by his evidence, his indebtedness to the plaintiff was thereby shown to be still subsisting, and therefore his testimony was against his interest.
The defendant offered in evidence the deposition of his vendor, having, before taking it, filed among the papers in the cause a release (indorsed on the bill of sale) of the witness from all liability by reason of his bill of sale. The plaintiff objected to the deposition, on the ground that there was no evidence of delivery of the release or notice thereof, or notice to the witness before the taking of the deposition: Held, that the mere filing of the release, without any circumstance showing directly or inferentially that the witness had notice of it before deposing, cannot be regarded as a delivery of it to the witness, either actual or constructive, and consequently that the objection was well taken and was erroneously overruled.
The objection of interest proceeds on the presumption that the mind of the witness may be biased by his interest, and the purpose of a release is to remove such bias, which purpose is not accomplished unless the witness, before testifying, was notified of the release to him of all interest in the matter. Therefore, any delivery of a release which falls short of giving to the witness, before his testimony is taken, notice of the execution of the release, is insufficient to remove the objection of interest and restore the competency of the witness.
Where the court is of opinion that the plaintiff failed to make out his case, yet, if the verdict may have been influenced by improper evidence for the defendant, a new trial will be ordered.
APPEAL from Parker. The case was tried before Hon. NAT. M. BURFORD, one of the district judges.
The appellant brought this suit to recover from the appellee a small lot of cattle, with damages for their detention. He set out his title specifically in his petition, alleging that he had purchased the cattle from one Alston, as the agent of one Scarborough, and that he paid for them with a balance due him on a joint note executed to him by the said Alston and Scarborough. He alleged that the cattle were delivered to him in accordance with his purchase, and that he retained possession of them until the defendant wrongfully took and drove them away.
The defendant denied generally the allegations contained in the plaintiff's petition, and further plead that the cattle were his own property, and not that of the plaintiff.
Two trials of the case were had, resulting in verdicts for the defendant. On the last trial, from which this appeal was taken, the plaintiff proved by his brother the purchase of the cattle from Alston, who was the step-son of Scarborough, and the payment for them in the manner alleged in the petition. The same witness testified that Alston had been in the habit of transacting business for Scarborough, and that the latter had on several occasions carried out contracts made for him by Alston. This witness stated that Alston was authorized to make contracts for Scarborough. The plaintiff introduced other witnesses, whose evidence tended to establish his case.
The defendant introduced two witnesses, who swore that the general character of the plaintiff's brother and witness was, that he was untruthful. He next offered the deposition of D. B. Scarborough, under whom both parties claimed title to the cattle. This witness testified that he had sold the cattle to the defendant at a date subsequent to the time of their alleged purchase by the plaintiff from Alston. He stated that Alston was never authorized to sell the cattle; that he was never an agent of the witness for any purpose; that he, witness, had given defendant a bill of sale for the cattle, and much more to the same effect. Defendant introduced the bill of sale from Scarborough to himself, on which was indorsed a release to Scarborough of all liability on account of the sale. There was no evidence showing that Scarborough knew anything about this release.
In advance of the trial, the plaintiff had moved to suppress the deposition of Scarborough, assigning sundry reasons in his motion; but the motion was...
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