Holstein v. Grier

• Decision Date: 25 November 1953
• Docket Number: No. 12631,12631
• Citation: 262 S.W.2d 954
• Parties: HOLSTEIN v. GRIER.
• Court: Texas Court of Appeals

Page 954

262 S.W.2d 954

HOLSTEIN v. GRIER.

No. 12631.

Court of Civil Appeals of Texas, San Antonio.

Nov. 25, 1953.

Clinton G. Brown, Jr., San Antonio, for appellant.

D. Richard Voges, Floresville, Marvin T. Deane, San Antonio, for appellee.

W. O. MURRAY, Chief Justice.

This suit was instituted by Alex Grier against Roy J. Holstein, seeking to recover the sum of $429 for the grubbing of 6.6 acres of land owned by Holstein. Grier's contention was that the contract price for the grubbing was $65 per acre, while Holstein contended that the total price for the grubbing of the entire tract was $65. Grier also asked for attorney's fees.

The trial was to a jury and resulted in judgment in favor of Grier in the sum of $429, together with attorney's fees in the sum of $100, from which judgment Roy J. Holstein has prosecuted this appeal.

Appellant's first contention is that the court erred in refusing to permit his two witnesses, Buster Talley and Dennis Talley, to testify because they violated the court's instruction placing them under the rule.

The case went to trial on the morning of June 23, 1953, before a jury, and all of the witnesses were placed under the rule, at the request of appellant, Holstein, in keeping with the provisions of Rule 267, T.R.C.P. Appellee placed some nine witnesses upon the stand during the morning, all of whom testified, in effect, that the prevailing price for grubbing land similar to that owned by appellant was $65 per acre. As each witness concluded his testimony, he was, by agreement of the parties and consent of the court, excused from the rule and allowed to remain in the court room. At noon the court adjourned, and when it reconvened after noon appellant's two witnesses, Buster Talley and Dennis Talley, seeing all of appellee's witnesses going into the court room, also went in and took seats among the persons present. At this juncture the appellee took the witness stand and testified, among other things, that the agreed price for the grubbing was $65 per acre, and rested his case.

Appellant then called his witness Buster Talley and learned, for the first time, that he was seated in the court room in violation of the rule, as was also his other witness, Dennis Talley. Appellee objected to the witnesses testifying, upon the ground that they had violated the rule, when objection was by the court sustained, and appellant denied the testimony of these witnesses, which was shown to be material.

It is apparent here that these two witnesses did not wilfully violate the rule, but did so through the belief that it would be all right for them to go into the court room as all the other witnesses were doing so. It is further apparent that the rule was violated by these witnesses without the consent, connivance, procurement or knowledge of appellant or his counsel. Under such circumstances the court erred in not permitting these witnesses to testify. It will be noted that the punishment prescribed by Rule 267, T. R. C. P., is that any person violating such instructions may be punished for contempt of court. There is no provision for not permitting the witness to testify.

The only case that has come to our attention where witnesses were not permitted to testify in a civil case for violating the rule is that of Johnson v. Cooley, 30 Tex.Civ.App. 576, 71 S.W. 34, 37. In that case the Court said:

'There is a conflict in the authorities on the question of the right of a trial court to refuse to permit a witness to testify, who, after having been placed under the rule, has violated the instructions of the court, and heard the testimony, or a repetition of the testimony, of other witnesses in the case. The weight of authority in America holds that such right does not exist in the court, unless the violation of the rule was occasioned by the party who offers the witness. In England the right is denied in all cases except those affecting the revenue. Jones, Ev. § 808. The question, in so far as it has been passed upon by the higher courts of this state, has more often arisen in criminal cases, and the complaint has generally been that the trial court erred in permitting the witness to testify. Sherwood v. State, 42 Tex. 498; Powell v. State, 13 Tex.App. 244; Creswell v. State, 14 Tex.App. (1) 16; Pierson v. State, 18 Tex.App. (524) 536; Cook v. State, 30 Tex.App. (607) 612, 18 S.W. 412; Texas Exp. Co. v. J. W. Dupree & Exp. Co., 2 Willson, Civ.Cas.Ct.App. § 321; Phillips v. Edelstein, Id. § 452. In these cases it was held that the matter was one resting...