Harrison v. Orr

• Decision Date: 25 June 1927
• Docket Number: (No. 916-4684.)
• Citation: Harrison v. Orr, 296 S.W. 871 (Tex. 1927)
• Parties: HARRISON v. ORR.
• Court: Texas Supreme Court

296 S.W. 871

HARRISON v.ORR.

(No. 916-4684.)

Commission of Appeals of Texas, Section A.

June 25, 1927.

Error to Court of Civil Appeals of Fifth Supreme Judicial District.

Suit by Carl Wallace and others against Charles M. Orr and Edward T. Harrison, wherein defendant last named filed a cross-action against defendant first named consolidated with a suit by Charles M. Orr against the State of Texas and another.Judgment for plaintiffs was reversed and remanded by the Court of Civil Appeals(285 S. W. 650), and defendant last named brings error.Affirmed.

J. L. Goggans, of Breckenridge, B. O. Baker, of Dallas, for plaintiff in error.

O. F. Wencker, of Dallas, for Carl Wallace and others.

John W. Pope and Stennis & Stennis, all of Dallas, for defendant in error.

NICKELS, J.

In the opinion of the honorable Court of Civil Appeals(285 S. W. 650) there is a general (although in some respects an incorrect) statement of the case and its various branches.It will not be restated here, except to the extent necessary to illustrate the points under discussion.

In the trial court peremptory instructions were given against Orr.This was assigned for error in the Court of Civil Appeals and the assignment was there sustained.The reasons given by that court, we think, too narrowly restrict Orr's privileges on the new trial.

The Court of Civil Appeals correctly held that an issue of fact was made about falsity of the tax-judgment recital of service upon him; but it held that the "undisputed evidence" shows a perfected bar of limitations in Harrison's favor under the four-year statute(article 5529, R. S. 1925), and hence that everything averred against the judgment by way of direct attack is precluded.The evidence upon which the ruling is predicated is in no wise disclosed in the opinion, and upon the assumption that the conclusion was right, writ of error was allowed upon assignments presenting the bar as against those things alleged by way of collateral attack upon the judgment and by way of direct and collateral attack upon the order of sale, sale, and sheriff's deed.Harrison's petition in error brought up the case as to all parties in order, it recites, that the Supreme Court"may unquestionably have the power and right to render whatever judgment it thinks proper herein as regards the rights of this plaintiff in error," etc., and includes a prayer for rendition of "such judgment as the law demands to the end that justice may be done."

Examination of the record has impelled the conclusion that the Court of Civil Appeals erred in its view of the evidence touching the matter of limitations.As remarked, its opinion does not exhibit the testimony, but upon examination it is found to consist, in the main, of testimony given by Orr upon the trial in his own behalf and upon cross-examination in which he was confronted with purported transcripts of former contradictory statements and of statements attributed to him in a deposition previously taken by Harrison, et al., and introduced by them subsequent to Orr's appearance as a witness.

The barring period did not commence until Orr learned, or in user of due care ought to have learned, of the existence of the judgment.Levy v. Roper, 113 Tex. 356, 256 S. W. 251.The evidence bearing upon actual knowledge and due care is identical.Hence, in any view of the record Orr's attacks are not barred unless he acquired requisite knowledge prior to December 21, 1911, because on December 21, 1915, his suit by way of direct attack was brought.Manifestly, the burden of proving that essential fact was upon Harrison unless through evidence produced in his own behalf Orr proved it for him.McAllen v. Alonzo, 46 Tex. Civ. App. 449, 102 S. W. 475.Unless Orr thus served his antagonist, Harrison must have proved the fact by evidence of conclusive effect in order for the peremptory instruction in his favor to be sustained.

There are one or two facts worthy of general notice in the approach to the more directly relevant evidence, and which might well have been considered by the jury if the case had been properly submitted to it.The case was tried in June, 1924; the exact point of inquiry related to a period expiring some 12 years before, and this affords an element to be considered in weighing evidence.At the time of the trial, Orr was about 60 years of age, and there is some manifestation of infirmities in him; he has an impediment of speech, and this might be thought by a trier of fact to resolve seeming contradictions afforded by comparison of transcripts of alleged former statements with statements made upon the trial, or might be taken in corroboration of his denials or restrictions of alleged former statements; in connections other than examination upon the exact point in controversy here, and under circumstances apparently negativing motive or purpose to evade or dissemble, he exhibited defects of memory, such, for example, as inability to state the day, month, or year of his wife's death, the year of their marriage or (except after reflection) her "maiden name."As will be seen, Mr. Goggans is attorney for Harrison and upon the trial heard Orr testify and cross-examined him; Orr's testimony so places Mr. Goggans as that he was bound to have personal knowledge of the approximate date of acquisition of knowledge by Orr; yet Mr. Goggans did not testify, and no effort to procure his testimony is disclosed.

Upon direct examination in his own behalf Orr testified as follows:

"They have introduced in evidence here copies of records showing default judgment and later what purports to be a final judgment in a tax suit, styled State of Texas v. Chas. M. Orr and numbered 2261 on the docket of the 44th district court.To my knowledge I was never served with any citation in that tax suit.The first that I learned that that property had been foreclosed on was some time after the sale.I was on Elm street, and a doctor I had met there several times told me he had been down to the courthouse, that he had seen my property had been sold for taxes, that was after the sale, and I came to the courthouse and looked it up, I think the next day, but I don't know how long it was that it had been sold.I came down to the courthouse and went all through and finally landed in the tax assessor's office and met Mr. Goggans, this gentleman over here.He was an attorney I think for the commissioners' court, bringing suit for taxes.I talked to him about this sale.He told me it had been sold, and I believe he told me I could redeem it at the end of two years from the sale.After I learned the property had been sold, I believe I went up and talked it over with Mr. Kinbrough.He had been my attorney in matters before that, and I think I went to Mr. Bolanz and talked to him and Mr. Murphy about it.

"I received no notice from the sheriff that this property was being advertised for sale before this doctor told me it had been sold.After talking with Mr. Kinbrough and Mr. Bolanz, Mr. Bolanz and Mr. Murphy both suggested it could be redeemed and I could wait until the time was up to redeem it and then redeem it.About thirty days before the time expired I went to Mr. Bolanz and asked him to attend to it for me.I understood I had two years in which to redeem it, and it was about thirty days or more before that time expired that I made this arrangement with Mr. Bolanz.I made arrangements to pay it off for me or have it done.They had a real estate office, and I didn't want to meet Mr. Harrison and referred Mr. Bolanz to the matter and asked him to attend to it for me.They told me they would get in touch with Mr. Harrison and attend to it."

On cross-examination by Mr. Goggans, Harrison's attorney, he said (in part):

"I testified before, and also in my deposition, that I met a Doctor Bell in a saloon in East Dallas a short time after the sale was made, and he told me about the sale having been made; then thereafter I came to the courthouse and investigated the matter.

"I told you before that I couldn't tell how long it was after the sale had been made.I said in my deposition possibly it was less than two months.I am inclined to believe it was, but it could have been six months.I am inclined to believe it was less than six months.

"I think I came down to the courthouse and found a notice of the sale on the board.I am not sure about that.I think I pulled the notice off of the door, or the notice could have been there for years as far as that is concerned.

"I think possibly I testified in the trial four or five months ago that it might have been less than week, that it was right after the sale that I was down here."

Further, in the cross-examination, he was confronted with transcripts of alleged former statements (made in previous trials of the case and in depositions taken in the case), some of which, if correctly reproduced, and if separately considered, would show that he acquired the information (above shown) at some date shortly after (maybe, before) the sale.Some of the supposed statements he repudiated, and others he qualified or explained.Throughout the cross-examination, however, he stoutly maintained that he did not acquire the information until some undisclosed date after the sale.

It appears that at some previous date Orr's deposition had been taken by Harrison, and this was introduced by Harrison after Orr had testified at the trial upon direct and cross examination.In view of his presence and testimony at the trial, Harrison did not have the absolute right to introduce the deposition (seeSchmick v. Noel, 64 Tex. 406;McClure v. Sheeks' Heirs, 68 Tex. 426, 4 S. W. 552;O'Connor v. Andrews, 81 Tex. 28, 16 S. W. 628;Ry. Co. v. Burnett[Tex. Civ. App.]42 S. W. 314;Fire Ass'n v. Masterson[Tex. Civ. App.]83 S. W. 49), unless, perchance, for impeachment or by way of proving declarations against interest.But since he did introduce it, it must be regarded as his own evidence and not...