McLean v. Hargrove

• Decision Date: 08 April 1942
• Docket Number: No. 1889-7823.,Motion No. 15526.,1889-7823.
• Parties: McLEAN v. HARGROVE.
• Court: Texas Supreme Court

162 S.W.2d 954

McLEAN v. HARGROVE.

Motion No. 15526.

No. 1889-7823.

Commission of Appeals of Texas, Section B.

April 8, 1942.

Rehearing Denied June 10, 1942.

Error from Court of Civil Appeals for Sixth Supreme Judicial District.

Suit by Mrs. Frances McLean Harris against John Hargrove in trespass to try title to land, wherein John Hargrove answered and made W. P. McLean, Jr., individually and as administrator of the estate of T. R. McLean, deceased, a party to the suit. Upon the death of John Hargrove, Mrs. Monnie Hargrove was appointed as administratrix of his estate and was granted leave to answer and defend the suit, and to prosecute a cross-action for the land in her own right, and as administratrix. W. P. McLean, Jr., as administrator, answered the cross-bill filed by Mrs. Monnie Hargrove and filed a cross-action. A verdict and judgment were directed in favor of Mrs. Monnie Hargrove individually and as administratrix, and from an order overruling a motion for new trial, W. P. McLean, Jr., individually and as administrator, appealed to the Court of Civil Appeals which affirmed the judgment, 144 S.W.2d 1021, and to review such judgment, W. P. McLean, Jr., brings error.

Reversed and remanded.

John E. McLean, McLean & Scott, and G. C. Johnson, all of Ft. Worth, and J. A. Ward, of Mount Pleasant, for plaintiff in error.

Seb F. Caldwell and Hiram G. Brown, both of Mount Pleasant, and Phillips & Phillips and Nelson Phillips, Jr., all of Dallas, for defendant in error.

SLATTON, Commissioner.

This is a suit by Mrs. Frances McLean Harris against John Hargrove in trespass to try title, wherein John Hargrove answered and made W. P. McLean, Jr., individually and as administrator of the estate of T. R. McLean, deceased, a party to the suit. Upon the death of John Hargrove, Mrs. Monnie Hargrove was appointed administratrix of his estate and was granted leave to answer and defend the suit, and to prosecute a cross action for the land in her own right and as administratrix. W. P. McLean, as administrator, answered the cross action filed by Mrs. Monnie Hargrove and filed a cross action. Upon a directed verdict judgment was in favor of Mrs. Monnie Hargrove, individually and as administratrix, which judgment was affirmed by the Court of Civil Appeals at Texarkana. 144 S.W.2d 1021. McLean was granted a writ of error.

McLean, upon a material issue made by the pleadings, offered in evidence statements made by John Hargrove as declarations against interest. The statements offered were made by John Hargrove upon a notice that his deposition on oral interrogatories would be taken by Burx Redfern, on July 9, 1936. A precept was issued on that date and a certified copy of the notice was attached thereto and legally served on John Hargrove on June 25, 1936. On July 9, 1936, John Hargrove, accompanied by his attorney of record, appeared at the time and place in said notice given and John Hargrove orally testified to oral interrogatories and his testimony was taken down in shorthand and reduced to writing by the said Burx Redfern. For some reason not disclosed by the record, the transcript of the questions and answers which had been reduced to writing by Burx Redfern was never signed by John Hargrove, he having died before the trial of the cause. The trial court, evidently acting upon the authority of Reilly v. Buster, 125 Tex. 323, 82 S.W.2d 931, 933, held that such declarations of Hargrove were not admissible. The Honorable Court of Civil Appeals at Texarkana entertained the same view.

The question presented in the Reilly case involved the introduction in evidence of a "so-called ex parte deposition", which was offered as "deposition evidence." It was shown that the party taking the same had not given the notice required by the statute and other provisions of the statutes had not been complied with in the attempt to take the deposition. The following expression contained in the opinion discloses the real question to be decided: "From the foregoing, it is very certain that the so-called ex parte deposition in this instance was no deposition at all and should not have been admitted as such. This being true, could the answers of plaintiff in error be treated as admissions? And, if so, would this cure the error of allowing them to be read to the jury? It seems to us these questions are answered by the mere statement that the answers were not offered merely as admissions, but were offered as deposition testimony given under the solemnity of an oath".

It is true that other language is used in the opinion which seems to condemn such evidence when offered as admissions or declarations against interest. The distinguished jurist writing the opinion recognized this distinction in the use of the following language: "For this reason, it would seem to be difficult to restrict or limit answers of a party taken under circumstances such as are present here so as to make them admissible merely as admissions, but it is not necessary to decide whether or not they would be inadmissible under all circumstances".

Since the "so-called ex parte deposition" was offered as "deposition evidence" and not as admissions or declarations against interest, the language of the opinion which condemns the introduction in evidence of such admissions or declarations against interest contained in depositions not taken in strict compliance with the statute, when offered as such, cannot be said to be necessary to the decision of the Reilly case. The court was not called upon to make a decision on that question. Therefore, the opinion expressed is not authoritative on that point. The rule in this court is that "Admissions, declarations or statements made by a person against his interest are admissible against him or those claiming under him * * *". 17 T.J. p. 543, Sec. 224. The rule is applicable where the admissions are contained in a deposition which has been suppressed because of informality of the endorsement on the deposition. Edwards et al. v. Norton, 55 Tex. 405, in which the court say: "For a like reason they cannot complain because the court, after having, at their motion, suppressed the depositions of Edwards taken at his own instance, because of informality in the indorsement, allowed plaintiff, after proving the handwriting of Edwards, to read his answers to those depositions, as admissions by him. The objection is, that the admissions of Edwards, made after he had parted with all interest in the subject matter of the suit, were not evidence against them. But Edwards was still a party defendant, and his answers to interrogatories irregularly taken, like any other admission of his, were good evidence against him. Lacoste v. [Chief Justice of] Bexar County, 28 Tex. [420], 422; 1 Greenleaf on Ev., sec. 552. As the answers were admissible against Edwards, and as the intervenors stood in his shoes, their rights being wholly dependent on his, no injury to them could result."

The rule is applicable although the admissions or declarations are contained in a deposition taken in another suit. Bilger v. Buchanan, Tex.Sup., 6 S.W. 408, 409. The court say: "Objection was made to reading Bilger's depositions in the case between O'Hara and Bonner. The objection amounted to this: that the depositions were not properly taken, as is required in case of depositions given under the statutes. It is not objected that the statements of Bilger were not proven by the testimony of the officer before whom they were made. Bilger's admissions made in those depositions were good testimony against himself. It mattered not that there was no commission, or whether they were made under oath before a proper officer. If they had been made privately to an individual, they should have been received, if proven by the party in whose presence they were made. They were not so proven; but objection was not made on that ground, and, as against all the objections taken, they were properly admitted."

See Parker v. Chancellor et al., 78 Tex. 524, 15 S.W. 157; Chaddick v. Haley, 81 Tex. 617, 17 S.W. 233; National Cattle Loan Co. v. Armstrong et al., Tex.Civ.App., 8 S.W.2d 767, writ of error refused.

It appears, therefore, that the rule has been consistently followed in this court since the decision of the Edwards case in 1881. The rule seems not to have been questioned until the Reilly case. Evidently the lower courts in this case and the Court of Civil Appeals at Fort Worth in the case of Pettit v. Campbell, 149 S.W.2d 633, have construed the opinion in the Reilly case to announce a different rule than has been applied in the above-noted decision of this court. In order to set at rest any apparent conflicts in the authorities, we hold that such...