McBride v. Kaulbach

• Decision Date: 28 December 1918
• Docket Number: (No. 388.)
• Citation: 207 S.W. 576
• Parties: McBRIDE v. KAULBACH et al.
• Court: Texas Court of Appeals

207 S.W. 576

McBRIDE v. KAULBACH et al.

(No. 388.)

Court of Civil Appeals of Texas. Beaumont.

December 28, 1918.

Rehearing Denied January 8, 1919.

Appeal from District Court, Jefferson County; E. A. McDowell, Judge.

Bill of review by Stephen McBride against H. B. Kaulbach and others to set aside a judgment. Judgment for defendants, and plaintiff appeals. Affirmed.

Davis, Johnson, Golden & Handley, of Dallas, for appellant.

Smith & Crawford and John Hancock, all of Beaumont, for appellees.

BROOKE, J.

The plaintiff, appellant here, Stephen McBride, of Newton county, Tex., filed a bill of review in the Sixtieth district court of Jefferson county, numbered 13193, styled Stephen McBride v. H. B. Kaulbach et al., seeking to have canceled, annulled, vacated, and set aside judgment against the said Stephen McBride entered on the 4th day of April, A. D. 1911, in cause No. 8277, styled H. B. Kaulbach v. E. F. Montgomery, W. C. Lenahan, and Stephen McBride, in the said Sixtieth district court of Jefferson county, Tex. The judgment entered was for the sum of $6,030, interest, and costs. The case was tried before a jury, and on January 15, 1918, the court instructed the jury to return a verdict for the defendant H. B. Kaulbach. Plaintiff requested the court to submit the case to the jury on special issues, and the court refused said request. Judgment was entered in favor of Kaulbach and against McBride on the verdict of the jury. The case is now before this court for consideration.

The first assignment of error is that the trial court erred in sustaining the objections of defendants to and in failing and refusing to permit the plaintiff to introduce in evidence the testimony of Charley McBride, Penny McBride, and Susie Lewis, all on the question and issue of whether or not the sheriff of Newton county, Tex., by his deputy, T. H. Hext, served the said Stephen McBride with citation and copy of petition out of cause No. 8277, H. B. Kaulbach v. E. F. Montgomery et al., Sixtieth judicial district court of Jefferson county, Tex., as shown by plaintiff's bill of exception.

The propositions under this assignment are:

"(1) The testimony of adult children having to do with the business and affairs of, and living near and with, an old and partially blind parent, is admissible in evidence on the issue as to whether or not said parent was served with citation in a particular suit in the district court; and, with testimony of parent that he was not served, raises an issue of fact to go to the jury.

"(2) Where an old and partially blind parent testified that he was not served with citation in a particular suit, but the return of the officer shows that he was served, and the testimony of adult children having to do with the business and affairs of, and living near and with, said parent, is to the effect that he was not served, such testimony of said children constitutes strong corroborative circumstances, corroborating the testimony of the parent that he was not served in fact with citation, and the testimony should be admitted as part of the record, and the same should be submitted to the jury to determine this issue of service or no service."

On the contrary, it is urged that, when any portion of testimony offered as a whole is objectionable and inadmissible, the court does not err in sustaining objections to and in excluding all of the testimony offered of which said objectionable testimony forms a part.

It seems that the entire testimony offered of said witnesses, in substance, is to the effect that they lived near S. McBride, and were occasionally with him and read to him at times, and had a general knowledge of his business; that they never heard of his (McBride's) being served with citation issued out of the Beaumont case, and were told by said McBride that he was never served. The deposition of Susie McBride contained the following:

"I know this was the first time he (meaning McBride) ever knew of the suit No. 8277, H. B. Kaulbach v. E. F. Montgomery, W. C. Lenahan, and S. McBride, because I came directly on to his house and asked him about the whole matter, and he told me then and there that this was the first time he ever heard of or knew anything about the suit at Beaumont. When I went to my father about the matter, he told me he never heard of the Beaumont suit."

The deposition of Charley McBride contained the following:

"I never heard anything about the suit at Beaumont, Tex., styled H. B. Kaulbach v. E. F. Montgomery, W. C. Lenahan, and S. McBride, until we, including myself, was served with citation by the sheriff of Newton county, Tex., in about August 3, 1917. If he (meaning S. McBride) had been served, I would have known about it. My father would have told me, and I know he was not served."

The tendered deposition of Penny McBride contains the following:

"And was with him (meaning McBride) in February, 1911, before that time, and since that time, and never heard of any such thing as my father being served by Mr. Hext with a citation."

S. McBride testified that in 1910 and 1911 he was traveling around generally, signing notes and deeds and attending to his own business. It appears that appellant offered all of the depositions of the witnesses Charley McBride, Penny McBride, and Susie Lewis together, which contained testimony, which, in our judgment, was hearsay. Upon objections urged by appellee, the entire deposition offered was excluded, and appellant refused to tender only the remaining portions after eliminating the hearsay testimony. We are of opinion that this testimony was not admissible, and in our judgment, when testimony contains objectionable parts, the whole of such offered testimony is inadmissible, and, in order to introduce the admissible portions, it is the duty of the party offering the same to separate the good from the bad and to offer the good alone. The whole of such testimony would not be admissible. Robinson v. Stuart, 73 Tex. 267, 11 S. W. 275; Cole v. Horton, 61 S. W. 503; Hill v. Taylor, 77 Tex. 295, 14 S. W. 366. Furthermore, we might say that the fact that his grown children knew nothing about the service of the citation on him is too remote and indefinite to prove as a fact that he was not served. What they knew, and not what they did not know, is what would tend to give support to the testimony of their father. We have examined the matter presented, and we are of opinion that there was no error in the action of the court in this matter, and the assignment is therefore overruled.

The second assignment of error complains that the trial court erred in giving to the jury a peremptory instruction as follows:

"You are charged that the evidence in this cause as a matter of law fails to show that plaintiff is entitled to recover, and you are instructed to return a verdict for the defendant H. B. Kaulbach"

— for the reason that the pleadings of the parties and the testimony introduced and offered to be introduced by the plaintiff in this case raise issues of fact as to whether or not the return made by the sheriff of Newton county, Tex., by and through his deputy, T. H. Hext, was true or not, and whether or not Stephen McBride was actually served with citation and copy of petition, or either of them, in case No. 8277, H. B. Kaulbach v. E. F. Montgomery et al., Sixtieth judicial district court, Beaumont, Tex.; and whether or not the said notes sued on by H. B. Kaulbach in said cause No. 8277 were signed by Stephen McBride or by his authority; and whether or not the right of said Stephen McBride to pursue his remedy herein by bill of review is barred by the statutes of limitation; and said issues of fact should have been submitted to the jury for determination.

The propositions under this assignment are:

"Where it appears that the return on the citation shows service on a defendant in a suit and judgment by default was taken, but said defendant testifies that he was never served and knew nothing about the suit or the transactions covering the subject-matter of the suit, and where it further appears that the officer making the return lived for many years during his childhood near the defendant and has known said defendant since said time, and yet such officer does not remember to have ever served said defendant with citation in the particular suit mentioned or in any other suit — such conditions and facts constitute strong corroborative circumstances supporting the testimony of the party claiming and testifying that he was not served, and the issue of service or no service should be submitted to the jury for determination.

"Where a party, in a bill of review seeking to set aside judgment by default on notes alleged to have...