McMahan v. Veasey

• Decision Date: 01 December 1900
• Citation: 60 S.W. 333
• Parties: McMAHAN et al. v. VEASEY.
• Court: Texas Court of Appeals

60 S.W. 333

McMAHAN et al. v. VEASEY.

Court of Civil Appeals of Texas.

December 1, 1900.

Appeal from district court, Collin county; J. E. Dillard, Judge.

Action by Leonora McMahan and another against J. T. Veasey. From a judgment in favor of the defendant, plaintiffs appeal. Reversed.

Abernathy & Beverly and E. B. Perkins, for appellants. Abernathy & Mangum, for appellee.

RAINEY, C. J.

This is an action to determine the boundary line between the Moore and Rainer surveys of land in Collin county. The first error assigned is that the court erred in excluding the deposition of Mrs. C. Graves when offered on the trial of the case. The objection to the deposition was that the officer taking the same was a surety on the bond for the party offering same as evidence. This was a good cause for suppressing the deposition (Floyd v. Rice, 28 Tex. 341) had the objection been made in the proper time and manner. The objection went to the manner and form of taking the deposition. In such case article 2289, Rev. St., provides: "When a deposition shall have been filed in the court at least one entire day before the day on which the case is called for trial, no objection to the form thereof or to the manner of taking the same shall be heard unless such objections are in writing and notice thereof is given to the opposite counsel before the trial commences: provided, however, that such objection shall be made and determined at the first term of the court after the deposition has been filed, and not thereafter." The deposition had been filed for more than one entire day before the case was called for trial, and no written motion to suppress had been filed, and notice thereof given to the opposite counsel, as required by statute. It was, therefore, error in the court to entertain said objection. Kottwitz v. Bagby, 16 Tex. 657; Garner v. Cutler, 28 Tex. 175; Grigsby v. May, 57 Tex. 258; Hendricks v. Huffmeyer, 15 Tex. Civ. App. 93, 38 S. W. 523. The objection having been sustained, the court erred in not allowing the plaintiff to withdraw his announcement of ready for trial, and continuing the case. Grigsby v. May, 57 Tex. 258.

The sixth assignment of error complains of the court for giving in charge to the jury the five-years statute of limitation. The ground of objection is that defendant claimed under deeds conveying the Rainer survey, and not conveying any of the Moore survey. If the field notes of the conveyance under which defendant claimed did not include the...