McFaddin v. Sims

• Decision Date: 16 October 1906
• Citation: 97 S.W. 335
• Parties: McFADDIN et al. v. SIMS.
• Court: Texas Court of Appeals

97 S.W. 335

McFADDIN et al. v. SIMS.

Court of Civil Appeals of Texas.

October 16, 1906.

Rehearing Denied November 8, 1906.

Appeal from District Court, Jefferson County; L. B. Hightower, Jr., Judge.

Suit by W. P. H. McFaddin and others against R. D. Sims. From a judgment in favor of defendant, plaintiffs appeal. Reversed.

Greers & Nall, for appellants. Hardy & Hardy, for appellee.

PLEASANTS, J.

Appellants, W. P. H. McFaddin, V. Wiess, and W. W. Kyle, composing the firm of McFaddin, Wiess & Kyle, brought this suit against the appellee, D. R. Sims, on an account for rents and for supplies furnished and advances made the defendant while he was a tenant on plaintiffs' farm; the balance claimed to be due on said account being $2,272.23. At the time the suit was filed plaintiffs applied for and procured the issuance of an attachment, which was levied upon 23 mules and one horse belonging to the defendant. The mules were sold by order of the court pending the trial of the cause. The horse died while in the custody of the sheriff or his agent. The answer of the defendant admits a portion of plaintiffs' account to be correct, but pleaded in offset thereto several items of indebtedness claimed to be due him by plaintiffs. He also claimed damages on account of the negligent and improper handling of defendant's rice by the plaintiffs, and on account of the failure of plaintiffs to comply with their contract to furnish sufficient water to properly irrigate defendant's rice, and further claimed damages, both actual and exemplary, for the alleged wrongful suing out of the attachment. A trial by jury resulted in a verdict and judgment in favor of plaintiffs for the sum of $357.03, with foreclosure of the attachment lien.

The first and second assignments of error complain of the ruling of the trial court in not sustaining plaintiffs' motion to suppress the depositions of the witness Harry Nolte. The grounds of this motion are, in substance, that neither the caption of the deposition nor the certificate of the officer, by whom the deposition purports to have been taken sufficiently identify the case in which it was taken; it not appearing therefrom in what court the case is pending, or that it is pending in any court; that the certificate of the officer before whom the depositions purport to have been taken does not show that the answers of the witness were sworn to and subscribed by him before said officer; and that the answers of the witness to some of the cross-interrogatories propounded by plaintiff are evasive. The bill of exceptions shows that the caption to the depositions was as follows: "Answers of Harry Nolte to the direct and cross-interrogatories propounded in the case of W. P. H. McFaddin et al. against D. R. Sims, No. 3,707. The said Harry Nolte being first duly sworn to make true answers to said direct and cross-interrogatories, made his answers as follows." The certificate to the deposition was as follows: "State of Kansas, County of Montgomery—ss.: I, the undersigned, Walter Zeigler, a notary public in and for the county of Montgomery, state of Kansas, do hereby certify that Harry Nolte was by me first duly sworn to make true answers to the above and foregoing direct and cross-interrogatories, and that his answers as given were reduced to writing, and that the same were subscribed and sworn to by said witness. In testimony whereof, I have hereunto set my hand and notarial seal this the 22d day of February, 1905. Walter Zeigler, Notary Public. [Seal.]" These depositions were attached to the direct and cross-interrogatories filed in this case, and were taken in obedience to a commission issued out of the district court of Jefferson county, in which the suit was pending. We think the caption and certificate of the officer sufficiently identifies the case in which the depositions were taken. The caption gives the correct style and number of the case. The interrogatories and commission both show that the case mentioned in the caption was pending in the district court of Jefferson county, Tex., and the certificate shows that the depositions were taken in answer to the interrogatories which were filed in said case. A substantial compliance with the statute is all that is required. Carroll v. Welch, 26 Tex. 147; Railway Co. v. Larkin, 64 Tex. 457.

A different question...