Laird v. Ivens

• Decision Date: 01 January 1876
• Parties: J. W. LAIRD v. EMILY L. IVENS.
• Court: Texas Supreme Court

45 Tex. 621

J. W. LAIRD

v.EMILY L. IVENS.

Supreme Court of Texas.

1876.

APPEAL from Anderson. Tried below before the Hon. M. D. Ector.

Reagan, Greenwood & Gooch, for appellant.

Word & Williams, for appellees.

ROBERTS, CHIEF JUSTICE.

The appellant, who was the defendant in the District Court, made a motion in writing, which was overruled before the trial of the cause, to suppress the depositions of Edmond M. Ivens, taken by the plaintiff, “because there is no certificate on the package or envelope inclosing said depositions, by the postmaster at New Orleans, Louisiana, showing from whom the said depositions were received by him.”

It appears by the indorsement on the envelope that the depositions were taken by “Alfred Ingram, Commissioner for the State of Texas, at New Orleans, Louisiana.” The deputy postmaster made the following indorsement on the envelope, to wit: “Received at New Orleans post office July 20, 1874; to be forwarded by mail. W. H. Worker, Dep. P. M.”

The statute requires that if the depositions be sent by mail, “the postmaster or his deputy mailing the same shall indorse thereon that he received them from the hand of the officer before whom they were taken.” This means, as we understand it, that in this case the deputy postmaster should have indorsed that he received the package from “Alfred Ingram, Commissioner,” because he appeared, from the indorsement on the sealed package, to be the person who had taken the depositions, and that was likely to be the only means of his knowing who had taken them. And if the postmaster should happen to know who did take the depositions, apart from what appears on the envelope, which would not often be the case, still it would be better for him to state in his indorsement the name of the person from whom he received the package to be forwarded by mail, as that was evidently the intention of the statute, upon a reasonable construction of it, considering the manner in which such business is usually transacted. (Paschal's Dig., art. 3729.) The statute was not complied with substantially in this case.

It has uniformly been held that there must be a strictly substantial compliance with the statute in taking depositions and in the form and manner of returning, when exceptions are taken in writing and notice thereof given before the trial. (Paschal's Dig., art. 3741; Garner v. Cutler, 28 Tex., 182.)

We are of opinion that the court erred in overruling the motion of defendant to suppress or exclude these depositions of E. M. Ivens thus returned into court in this case.

There are other errors assigned, which might call for an opinion of this court, if the proof of the facts relied on by each party had been more definite, and had more nearly corresponded with the facts as they are alleged in the pleadings.

The note sued on does not, in form and mode of signing, purport to be a partnership note, or on its face to have been given in a partnership transaction. The amended petition alleges that it was given by the defendants as balance of a note previously executed by Davis & Laird, as partners, for a partnership debt incurred by the purchase of mill-machinery; and the original petition states that the defendants were partners at and before the date of the execution of the note sued on. This last fact Laird denies, in an answer in the nature of a plea of non est factum; in reference to which plaintiff alleges, in his amended petition, that the firm of E. M. Ivens & Co. (to whom the first note was given) never had any notice of the dissolution of the firm of Davis & Laird. The last note changes the debt in the first note by giving time, adding in the interest, raising the interest thereafter from eight to ten per cent., and by making the note payable to E. M. Ivens alone, and not, as the first note, to E. M. Ivens & Co.

Under the issue thus presented, it was incumbent on the plaintiff to allege and prove such facts as would render Laird legally liable to pay said last note, which was sued on, the first being barred by limitations when set up, as was held by the District Court. It is suggested that the important facts are, first, that Davis & Laird...