Hampton v. Another

• Decision Date: 31 December 1849
• Citation: 4 Tex. 455
• Parties: HAMPTON v. DEAN AND ANOTHER.
• Court: Texas Supreme Court

4 Tex. 455

HAMPTON

v.DEAN AND ANOTHER.

Supreme Court of Texas.

December Term, 1849.

It is not error to submit to the jury an issue upon a plea of former judgment, nor to admit evidence to identify the judgment and the note upon which it was rendered.

Where the issue was on a plea of former judgment before a justice of the peace, and the justice was called to identify the note on which the former judgment was had, with the note sued on, and further testified, without objection, that “there was a credit upon the note when it was placed in his hands for suit:” Held, That the testimony of the justice would seem to warrant the court in permitting the indorsement of the credit to be read and commented on in argument to the jury, although it had not been formally introduced in evidence before the testimony was closed.

It is within the discretion of the court, if the justice of the case seem to require it, and if it would operate no surprise or prejudice to the opposite party, to permit evidence to be given even after the argument has commenced; the other party being permitted to introduce any explanatory or rebutting evidence which he might offer.

A payment upon a note, in the absence of proof of an intention to make a different application of it, must be first applied to an extinguishment of the interest.

It is error to give a hypothetical charge to the jury, where there is no evidence conducing to prove the facts upon which it is predicated.

Where suit is brought by the holder of a note for an amount larger than $100, and the defendant pleads the judgment of a justice of the peace on the same note, in a suit between the defendant and a former holder it lies upon the defendant to prove, aliunde the record of the justice, paying sufficient to reduce the note to an amount within the jurisdiction of the justice. (Note 97.)

A note originally for more than $100 is not within the jurisdiction of a justice unless the payments indorsed upon it, after extinguishing all the interest due at the time of making the payments, reduce the principal to $100 or under.

Appeal from Upsher. The appellant brought suit against the appellees upon a promissory note set out in the petition as follows:

“MONTGOMERY, January 20, 1844.

$100.10 On or before the first day of January next we or either of us promise to pay Franklin Armstrong or bearer one hundred dollars and ten cents for value received.

JARROT DEAN.

A. MOSELEY.”

The answer embraced a plea of a former judgment rendered by a justice of the peace upon the same cause of action between one E. F. Ginnis, the then owner and holder of the note now sued on, as plaintiff, and these defendants.

To this plea the plaintiff excepted, but his exceptions were overruled.

The plaintiff read in evidence the face of the note sued on. The defendants then proved by the justice of the peace the record of the former judgment, as follows: “Note in the sum of one hundred dollars. The defendant appeared and introduced evidence to the full payment of said note. It is therefore considered that a judgment be rendered against the plaintiff for the costs of suit;” to the admission of which in evidence the plaintiff objected, but his objections were overruled. The defendants further proved by the justice that the note sued on was the same upon which the judgment was rendered by him. They also proved certain indorsements upon the note made by the justice corresponding with his judgment. There was testimony conducing to show the title of Ginnis to the note when sued on before the justice. The justice also testified that there was a credit upon the note when it was placed in his hands for suit. During the argument the defendants' counsel offered to read to the jury and comment upon an indorsement upon the note, as follows: “Aug. 12th, 1847. Received twenty-five cents on the within note;” to the reading of which the plaintiff objected, but the objection was overruled.

The court charged the jury, in substance, that the burden of proof was on the defendants; that it devolved on them to establish the truth of their answer, and unless they had done so the plaintiff was entitled to recover; that if the jury believed that Ginnis, being at the time the bona fide owner and holder of the note, entered a credit upon it, so as to reduce the amount within the jurisdiction of the justice, and then sued, and there was a trial and judgment upon the merits before the justice, the jury would find for the defendants; otherwise they must find for the plaintiff. The plaintiff then asked of the court the following instructions: “That the defendants must prove that the justice of the peace before whom the cause was tried tried the case upon the merits, and that he had jurisdiction to try the same; and further, that the defendants cannot contradict the record introduced by parol testimony, and that the indorsement upon the note must first go to discharge the interest; and if the principal and interest amounted to more than one hundred dollars when the suit was brought before the justice, that the justice had no jurisdiction, and they must find for the plaintiff.”

These instructions the court refused.

The jury returned a verdict for the defendants. The plaintiff moved the court for a new trial, which was refused. Judgment was rendered upon the verdict, and the plaintiff appealed.

Shedd, for appellant.

I. The court erred in overruling the motion to strike out the plea of former trial for the following reasons:

1st. The plea does not show the amount of the judgment or the amount of the debt sued on before the justice of the peace. These averments should have been made, that the court could determine whether it was the debt sued on.

2d. It appears from the record that the justice could have had no jurisdiction of the cause of action, (being over $100,) and there is in the plea nothing to show he had jurisdiction.

3d. As the District Court had decided that they had exclusive jurisdiction of the cause of action, it was inconsistent with that decision to admit this plea. Upon the trial the court erred in submitting the trial of the issue of nul tiel record to the jury, and therefore it was error to permit the record to be read to the jury as evidence. The court should have inspected the record and decided that issue. But if the jury had to try that issue, then it was error to admit the record as evidence; for there is a variance between the record and plea. The record describes...