Hagerty's Ex'Ors v. Wife

• Decision Date: 01 January 1853
• Citation: 10 Tex. 525
• Parties: HAGERTY'S EX'ORS v. SCOTT AND WIFE.
• Court: Texas Supreme Court

10 Tex. 525

HAGERTY'S EX'ORS

v.SCOTT AND WIFE.

Supreme Court of Texas.

1853.

The absence of a particular attorney, the leading counsel in a case, who has prepared and studied the case and has the papers, and on account of whose absence important testimony had not been obtained, is no ground for a continuance, where such absence was anticipated by the party and his attorney several weeks before court, no matter how important the business may have been which called the attorney away.

If the progress of the trial discloses that a party has suffered injustice by being compelled to go to trial unprepared, although his showing for a continuance was insufficient, the court below may, on motion, grant a new trial. (Note 98.)

Wherever absent evidence is involved in a motion for a new trial or a second continuance its purport should be stated, in order to enable the court to determine on its importance.

The revision and correction of the settlement of a guardian's account in the District Court, upon proof of fraud or mistake, under the 39th section of the act of 1848, (Hart. Dig., art. 1570,) is an original proceeding; and the certiorari, being designed only to bring up the record of the Probate Court, is unnecessary, where a complete transcript of the proceeding of that court is filed with the petition.

The limitation of two years within which suit may be brought in the District Court to revise the settlement of a guardian's account does not begin to run until the account has been confirmed by the Probate Court. (Hart. Dig., art. 1570.) Nor, as against the ward, until the latter became of age; nor, where the new guardian is the wife of the former one, until the removal of the disability of coverture.

A petition, under the 39th section of the act of 1848, (Hart. Dig., art. 1570,) which sets up a failure of the guardian to account for certain property belonging to the ward, which came to his hands, is sufficient.

Quere? How the depositions of witnesses residing in the Creek Nation, where there are no courts, &c., are to be taken. It seems they may be taken, upon proper notice, in Arkansas, if the witnesses will voluntarily attend.

Objections to the form and manner of taking depositions cannot be heard unless they are in writing, and notice thereof is given to the opposite counsel before the trial of the suit commences. (Hart. Dig., art. 733.) (Note 99.)

The grounds of objection to the admissibility of evidence which is received should be distinctly stated at the time and be shown by the bill of exceptions.

It is not error to refuse to give a charge which is inapplicable to the facts proved; and where it was proved that the written law of the Creek Nation made the “nearest relatives” the heirs, and that the received construction of those terms--there being no courts--preferred brothers and sisters to parents, it was held that the following instruction asked was applicable: that if a foreign written law had been proved, and a custom conflicting with the written law, they were bound by the written law.

See this case for what is said upon a point made as to the refusal of the court to charge the jury, as requested, upon a foreign law, and also upon a point made as to the charge of the court upon a foreign law, the charge being made at the request of the party objecting to its terms.

Appeal from Nacogdoches. The appellees sued the appellants, alleging that Benjamin and Rebecca Hawkins, husband and wife, natives and members of the Creek Nation of Indians, were married in 1830, and previous to 1834 had two children, to wit, William and plaintiff, Louisa; that in September, 1863, William died (without issue, intestate, and having no brother or sister except Louisa) in the Creek Nation, in the Territory of Arkansas; that at the time of his death, the said William owned and possessed the following-named slaves, naming them, eight in number; that by the laws and customs of the Creek Nation the said negroes, upon the death of the said William, became the sole property of the said Louisa; that about December, 1833, the said Benjamin and Rebecca removed to Texas, and brought with them the said Louisa, and also said slaves and their increase; that said Benjamin died in Texas in the fall of 1836; that in March, 1838, the said Rebecca intermarried, in Nacogdoches county, with Spire M. Hagerty; that on the 8th October, 1838, the said Hagerty was duly qualified, in Nacogdoches county, as guardian of the person and estate of said Louisa; that said Hagerty took possession of said slaves and their natural increase, refused to return them to the Probate Court as the property of said Louisa, and “wrongfully and fraudulently kept and held them in his possession, and appropriated their labor and profits to his own use from the date of his appointment to the 4th day of July, 1849,” and also “failed to account to said Probate Court for the hire and profits of said slaves, or any part thereof;” that the natural increase of said named slaves, from September, 1833, the time of said William's death, to the 8th October, 1838, is as follows, to wit, &c.; that the labor and services of said slaves while in the possession of said Hagerty were worth, to wit, &c.; that on the 8th October, 1838, the said Hagerty took into his possession certain other negroes, the property of the said Louisa, to wit, &c., (5,) which said negroes he returned in his inventory as the property of the said Louisa; that on the 8th October, 1838, said Hagerty took into his possession certain other negroes belonging to said Louisa, to wit, &c., (6,) which last-mentioned negroes the said Hagerty did not inventory and return to the Probate Court as said Louisa's property, but kept them in his possession until the 4th July, 1849, receiving and appropriating to his own use the labor and services of said slaves; that on the 1st April, 1848, the said Hagerty made a return to the Probate Court of all of said last-named eleven negroes, and charged himself with their hire from the 1st January, 1839, to the 1st December, 1847, at the aggregate price of $2,520; that he failed to hire out said negroes, as by law he was bound to do, and that their labor was worth as follows, &c., ($11,118 50;) that the said Hagerty refused to lend out the money at interest, to which the said Louisa was entitled for the hire of said slaves, and refused to account to her for the same, to her damages ten thousand dollars; that said Hagerty never rendered an account of his guardianship until the 1st April, 1848, and in his account then rendered made false and fraudulent charges against the said Louisa, as follows, (here followed a long specification of the charges, &c.;) that the County Court of Nacogdoches county erroneously received, approved, and allowed the said several accounts, and on the 24th September, 1849, made a final settlement with said Hagerty as guardian of said Louisa, and then erroneously and finally discharged and released him from his said guardianship; that said Hagerty died about the 7th December, 1849, leaving a will, by which the defendants were appointed his executors, and that they, although often requested so to do, had refused to correct the errors and fraudulent acts and doings of the said Hagerty in said guardianship. With the petition issued a transcript of the papers and proceedings of the guardianship in the County Court.

The defendants answered first by general and special exceptions to the petition; second, by a denial of all the allegations in the petition except their fiduciary capacity and the alleged guardianship of Hagerty; third, by adopting as part of their answer the transcript of the County Court, made a part also of the petition; and fourth, the statute of limitations.

In August, 1848, on the petition of the plaintiff Louisa, she being then over fourteen years of age, Mrs. Rebecca Hagerty, her mother, was appointed her guardian and qualified.

At December Term, 1851, the case was continued by consent. At June Term, 1852, it was continued by the defendants. At December Term, 1852, the defendants moved for a continuance, which was overruled. (See the opinion for the showing.) A trial was had, verdict and judgment for the plaintiff for $--. Motion for new trial by defendant overruled, and notice of appeal to the Supreme Court. The allegations of the petition, so far as facts were concerned, were proved.

It was proved by the depositions read at the trial that according to the laws of the Creek Nation, one's “nearest relatives” are his heirs, and that the interpretation of “nearest relatives,” as there received, preferred brothers and sisters to parents. Many bills of exception were taken to the admission of evidence, but none of them disclosed the particular grounds of objection, and the testimony was revelant in every instance.W. P. Hill and C. M. Adams, for appellants.

Henderson & Jones and T. J. & J. H. Rogers, for appellees.

LIPSCOMB, J.

The first ground presented on which the appellants ask a reversal of the judgment of the court below which we will examine is the refusal of the court to grant a continuance on the application and affidavit of the appellants, who were the defendants.

This application for a continuance was predicated upon a statement made by M. P. Hill, Esq., admitted to be received as on oath by the parties. It shows that he was of counsel for the defendants; that he had bestowed much study on the case, and that he was convinced that no lawyer could master the questions presented in the time from his making this statement and the meeting of the court; and that he had the papers in the case and had made preparation to take the evidence by commission of witness, but that he had not time to...