M'Clure v. Heirs of Sheek

• Decision Date: 07 June 1887
• Citation: 4 S.W. 552
• Parties: McCLURE and another v. HEIRS OF SHEEK.
• Court: Texas Supreme Court

4 S.W. 552

McCLURE and another v. HEIRS OF SHEEK.

Supreme Court of Texas.

June 7, 1887.

Appeal from circuit court, Baylor county.

Action to subject personal property alleged to have been fraudulently transferred to the payment of a judgment. Plaintiffs, D. H. & C. H. McClure, appeal.

McCall & McCall, for appellants. Duncan G. Smith, for appellees.

GAINES, J.

The court did not err in overruling appellants' application for a continuance. Before the term of the court at which the case was tried, the attorneys for appellants had telegraphed the attorneys for appellees asking that the cause be continued by consent, and had received an answer through the same channel acceding to the request. Appellees hearing of this, and not being willing to continue for the term, appeared at court on the first day, and employed other counsel, and had notice given to appellants' attorneys that they would not carry out the arrangement. On the fifth day of the first week the case was called for trial, and appellants, who were plaintiffs in the court below, asked that the case be continued under the agreement. Appellees resisted the motion on the ground that they had not authorized the agreement by their attorneys, and that it was greatly to their prejudice; and thereupon the court set down the case for trial on a day of the third week of the term. Upon the case being called, upon the day set down, plaintiffs presented an application in writing for a continuance of the cause on account of the agreement; and defendants filed an affidavit resisting the application, setting forth that the agreement was made without their consent, and facts showing that it was greatly to their prejudice to continue the cause to another term. Plaintiffs did not show that they were not ready for trial, nor did they show that the agreement had operated in any manner to prevent their being ready. Agreements of counsel in regard to the trial of a cause are not absolute, although in writing; and are not to be treated as contracts to be enforced under all circumstances. They may be set aside by the court, in the exercise of a sound discretion, when their enforcement would result in serious injury to one of the parties, and the other would not be prejudiced by its being set aside. Hancock v. Winans, 20 Tex. 320. Here defendants showed that the continuance of the cause would likely result in the loss of the cattle which were the subject-matter of the litigation, and plaintiffs showed no grounds for a continuance except the naked agreement.

Neither did the court err in excluding the deposition of the witness Martin Lane. The bill of exceptions shows that the witness was in attendance upon the court at the time, and was held under the rule. That a deposition cannot be read under such circumstances, over the objection of the adverse party, is expressly decided by this court in the case of Randall v. Collins, 52 Tex. 435. The question in that case arose under the act of 1879, (Rev. St. art. 2218, note;) and the ruling is in accordance with the former decisions of the court under the previous law, (Elliot v. Mitchell, 28 Tex. 105; Boetge v. Landa, 22 Tex. 105.)

It was not error to exclude the testimony of McClure as to a declaration made to him by one of a party who were driving a portion of the cattle, to the effect that the cattle they were driving belonged to J. W. Sheek. Plaintiffs claimed that the cattle in controversy were the property of J. W. Sheek. He was in control of a number of cattle bearing the same brand when the declaration was made; but we infer he was not immediately present. But, whether present or not, the declaration was inadmissible. He could not, by his own declaration, have made evidence in favor of his own right against J. W. Sheek, under whom defendants claim, nor could a third party do so for him. Hence plaintiffs, who claimed through him, could not avail themselves of such declarations. The evidence was strictly hearsay, and was properly excluded.

Appellants, by their fifth assignment, allege that the court erred in permitting a witness to testify that it was the custom of the country for persons having charge of cattle belonging to other persons to render the property for assessment in their own names. Plaintiffs had shown that G. W. Sheek had given in to the assessor the cattle in his own name. This evidence was offered as a circumstance tending to show that they were J. W. Sheek's cattle. Now, if it were true that such a custom existed in that county, this fact was calculated to weaken the force of the circumstance which plaintiffs had proved, and was therefore good evidence for defendants in rebuttal. It was explanatory of a suspicious circumstance against defendants, and was therefore admissible without reference to any question whether such custom was lawful or unlawful. The witness was the assessor of the county, and was in a position to have known the fact about which he testified. We conclude the court did not err in admitting the evidence.

The proposition, under the sixth and seventh assignments of error, is that "the court erred in admitting the pretended copies of brands of G. W. Sheek, in Palo Pinto and Jack counties, because they showed different brands in each county, and because the law allows but one mark and one brand for one person." It is true that the statute provides that a party shall have but one mark and brand, (Rev. St. art. 4556;) but this was not intended to prohibit a stock-owner from changing his mark and brand. The bill of exceptions to the introduction of the record from Palo Pinto was based upon the grounds (1) that the record was a mere recital of the mark and brand, ostensibly made by the clerk; and (2) that it appeared that G. W. Sheek had another brand in Parker county. It is sufficient to say, in regard to the first objection, that the entry upon the record book showed distinctly the brand and mark claimed by G. W. Sheek, and that this attained all the purposes of the law. Its form was a matter of no importance otherwise. As to the second ground, the bill of exceptions shows that the Palo Pinto brand was recorded in 1875, and the Parker county record was not made until 1880, long after the cattle in controversy had been removed from that county. We do not see that the latter record invalidated the former. A different brand from that of record in Palo Pinto was registered in Jack county, 1877. The evidence shows that the brand was changed to that recorded in the latter county after the cattle were removed there, and that this was made necessary by others claiming the former brand in that county. We see no error in admitting the evidence.

The other assignments relate to the giving and refusal of charges. It appears that in 1872 J. W. Sheek sold a tract of land for $2,700, of which $700 was paid. J. M. Lane, a debtor of Sheek's vendee, assumed to pay the balance in cattle. It was agreed that this debt should be paid to G. W. Sheek, a brother of J. W. Sheek, and the debtor executed an obligation to him. J. W. Sheek was then insolvent, and owed the debt upon which the judgment was obtained which plaintiffs in this proceeding are seeking to enforce. Defendants claim, and the evidence shows, that, at the time of the transfer of the debt to their father, G. W. Sheek, by J. W. Sheek, the latter was indebted to the former in the sum of $696, and that the transfer was made to secure this debt, and that the balance, when collected, was to be paid on a debt of $3,000 J. W. Sheek owed to J. S. Sheek, another brother, provided the last-named creditor was not paid out of certain collaterals he then...