Garlington v. McIntosh

• Decision Date: 11 December 1895
• Citation: 33 S.W. 389
• Parties: GARLINGTON et al. v. McINTOSH.
• Court: Texas Court of Appeals

33 S.W. 389

GARLINGTON et al. v. McINTOSH.

Court of Civil Appeals of Texas.

December 11, 1895.

Appeal from Dallas county court; T. F. Nash, Judge.

Action by D. C. McIntosh against M. D. Garlington & Co. Judgment for plaintiff, and defendants appeal. Affirmed.

Otis S. Eaton, for appellants. James N. Wilkerson, for appellee.

NEILL, J.

The appellee alleged in his petition that on December 11, 1893, he sold and delivered to appellants 253 boxes of oranges at $1.05 per box and 25½ boxes at $2.25 per box, aggregating $321.90, which sum they promised to pay upon delivery, and have never done so. The appellants answered by a general denial, and pleaded in reconvention damages in the sum of $415, which they alleged was occasioned by the failure of appellee to deliver the fruit in good condition at the time agreed upon. The cause was tried without a jury, and resulted in a judgment against appellants for $218.96, from which they have appealed.

It appears from appellants' bill of exceptions No. 2 that they moved the court to suppress the depositions of certain witnesses, taken at the instance of appellee, upon certain grounds, set out in the bill of exceptions, and that the motion was overruled. This ruling of the court is made the basis of the first assignment of error insisted upon. It does not appear from the bill of exceptions, or from the record, that any of the objections urged in the motion to the depositions existed. The recital of the objections by no means shows their existence; and, in the absence of such showing, we will presume, in favor of the ruling of the court, that they did not. Fant v. Wickes (Tex. Civ. App.) 32 S. W. 127.

The permission of a witness who has remained in the court room, and heard some of the testimony, to testify, after the rule was invoked, is within the sound discretion of the trial court, and will not be revised on appeal, unless an abuse of such discretion is apparent. In this case it does not appear that the court abused its discretion in permitting such a witness to testify for the appellee.

The judgment of the court is fully sustained by the testimony and it did not err in refusing to set it aside and grant a new trial. Affirmed.