Foster v. Smith

• Decision Date: 31 December 1846
• Citation: 1 Tex. 70
• Parties: JOHN FOSTER AND RACHEL FOSTER v. FRANCIS W. SMITH
• Court: Texas Supreme Court

1 Tex. 70

JOHN FOSTER AND RACHEL FOSTER

v.FRANCIS W. SMITH

Supreme Court of Texas.

December Term, 1846.

Appeal from Colorado County.

According to the correct rule of practice, no judgment ought to be reversed in this court on the ground that the verdict is not supported by the testimony, unless there had been a motion for a new trial in the court below, and in cases hereafter decided in the district courts, such rule will be enforced in this court. [ Post, 311; 20 Tex. 568;29 Id. 186.]

The practice which has heretofore prevailed, of bringing cases into this court upon that ground alone, without such motion having been made in the court below, will prevent the operation of the rule in cases heretofore decided in the lower courts.

This suit was brought to recover the amount of an open account for medical services. The account was made out as follows: “John and Rachel Foster to Francis W. Smith, M. D., Dr.” The items in the account appeared to be for services rendered to John Foster and his daughter, and for medicines. The nature of the connection between John and Rachel Foster is not alleged. Rachel Foster pleaded coverture in abatement, but did not swear to her plea. Both defendants pleaded a general denial and the statute of limitations. There is no bill of exceptions in the transcript. The statement of facts is as follows: “Testimony: The plaintiff introduced W. A. Shepherd, who testified that he conversed with John Foster, who did not deny the justice of the account but admitted it, as witness understood, in general terms; the witness was a physician and did not think the charges high. Thomas Thatcher called by defendant, testified that he knew a Rachel Foster, who was the wife of John Foster, but could not say whether she was the same person with defendant; did not know any other Rachel Foster. (Signed) William J. Jones, District Judge.”

There was a verdict and judgment for plaintiff against both defendants.J. Webb, for appellants, contended that the judgment ought to reversed, becanse there was no evidence to charge Rachel Foster. The admissions of John Foster, if sufficient to charge him, were wholly inadmissible if applied to Rachel Foster. There is no allegation of partnership, and the suit being against them jointly raises no presumption that they were partners. The admission of an alleged partner cannot be received against his alleged copartner until the partnership is proved. Gow. on Part. 193.

If John and Rachel Foster were man and wife, as is alleged in the plea (if the plea be considered as before the court), then there was a misjoinder of parties, as the wife could not be joined with her husband in contracts, made after marriage. 2 Roper, 77.

The “testimony” having been stated and certified by the presiding judge, this court will presume that the statement contains all the evidence offered at the trial.

Robinson and Fisher, for appellee. There is no statement of facts sent up in this case. No evidence appears on the record that was given below, and certified as such. The judge who presided merely signs a piece of paper, headed “Testimony.” This court will not disturb the verdict from the mere absence of...