Mcmullen v. Guest

• Decision Date: 01 January 1851
• Citation: 6 Tex. 275
• Parties: MCMULLEN v. GUEST.
• Court: Texas Supreme Court

6 Tex. 275

MCMULLEN

v.GUEST.

Supreme Court of Texas.

1851.

The repeal of an act by virtue of which suits have been brought and are pending at the time of the repeal does not affect such suits where the same act which makes the repeal contains a substantial re-enactment of the provisions under which the suits were brought.

Where the plaintiff is a resident of the State he is entitled to the process of the courts to enforce his rights against a non-resident whose person or property he may find subject to that process. He may, under the act of the Legislature, sue the non-resident as a “transient person,” if found temporarily sojourning here, and if not to be so found he may sue and obtain service by publication, whether the defendant have any property in the State or not. This case is distinguishable from the case of Ward v. Lathrop, (4 Tex. R., 180.) (Note 49.)

Quere whether the English law in respect of champerty and maintenance is in force in this State. If it were, the fact that the plaintiff had parted with his title or claim under a champertous contract to a third person, for whose benefit the suit was alleged to be prosecuted, would not defeat a recovery. Nor could champerty be proved upon the trial where it was not pleaded in the answer.

Where the plaintiff sued for the value of work and labors performed through a series of years, and the defendant pleaded the statute of limitations; Held, That the plaintiff could not recover for more than two years.

Error from Cass. The defendant in error sued the plaintiff in error, on the 8th day of November, 1847, to recover the sum of one thousand dollars, alleged to be due him for work and labor performed by him for the defendant at his request for the space of seven years, ending on the 1st day of July, 1847. The petition alleged that the plaintiff resided in the county of Cass, in this State, and that the defendant was a resident of the State of Louisiana. The plaintiff's attorney made affidavit that the defendant is not an inhabitant of this State.

The defendant, having been served with process by publication, appeared and answered by a general demurrer and a denial of indebtedness and the allegation of special matter in his defense; he also pleaded the statute of limitations.

The cause was tried at the Fall Term, 1849. It was in proof that the defendant resided with the plaintiff in the years of 1841, '42, '43, '44, '45, '46, and a part of 1847. There was proof of an agreement or understanding between the parties that the plaintiff was to receive by the year for his labor and services a specified sum or a part of the crop raised upon the defendant's farm. And there was evidence respecting the value of the services rendered by the plaintiff, but upon this point the testimony was conflicting. There was proof of services rendered of more or less value during several years, ending at a period in the year 1847 some time previous to the commencement of the suit. The defendant introduced a witness (Wilson) who testified that the plaintiff told him that the terms on which he had agreed to bring this suit were that one Spellings (with whom he made the agreement) was to pay the attorney's fees and all the costs and expenses of the suit, and the plaintiff was to divide with him equally the amount recovered. This testimony was rejected by the court and excluded from the consideration of the jury, to which ruling the defendant excepted. There was a verdict and judgment for the plaintiff for three hundred and ten dollars; a motion for a new trial overruled.

J. H. Rogers, for plaintiff in error.

I. The petition alleges that the defendant below was a resident citizen of the State of Louisiana at the institution of the suit. There is no allegation that the court had jurisdiction over him or any property which is the subject-matter of controversy.

The 11th section of the act of 1846 (page 366) to regulate proceedings in the District Courts was evidently intended to apply to those cases only in which suit was brought to recover land or other property within the jurisdiction of the court, or where it was commenced by attachment which was levied upon property within the State when the defendant was not an inhabitant and it was necessary to make him a defendant or party. By giving this construction to the section (and it is a most obvious one) it harmonizes with the 1st section of the same act. Any other would make them conflict, and it is a cardinal rule of construction that every part of a statute shall receive that interpretation which will make the whole harmonize, if possible; or, in other words, such a construction shall not be given to one clause or section of a statute as will destroy the obvious meaning and import of another, unless its terms will admit of no other construction. But argument on the point is unnecessary. I regard the question as no longer open since the decision of this court in the case of Ward v. Lathrop et al., made at the December Term, A. D. 1849.

II. It was error to reject the testimony of Wilson, which went to show that the suit would not have been brought but for the agency and intermeddling of Spellings, and which presents some strong features of champerty or maintenance. (White v. Gray's Executor, 1 Tex. R., 384.)

This bargain or contract plainly tends to encourage that species of lawsuits known to the law as champerty or maintenance. (See Power v. Knouky, 2 Atk. R., 224; Story's Eq., secs. 297, 298.) The same doctrine, laid down in White v. Gray's Executors, is also held in Chitty on Contracts, marginal page 677, as to the purchaser contracting to pay costs; and a full discussion of the whole question will be found in 4 Blackstone, 134, 135, marginal page. (1 Russell, 176; Coke, Litt., 368.)

III. This case presents an admirable illustration of the necessity and wisdom of the statute of limitation. They are in such cases essentially statutes of repose. The plaintiff, a destitute relation of the defendant, lives with him a number of years, under contracts deemed by both as giving fair equivalents for the services rendered and recovered by either. The presumption, in the absence of proof, would be that the contracts were closed and settled at the end of each year, but from the relations of the parties it was not deemed important to preserve the evidence of each settlement. Years after, when the parties have fallen out, or when one of them has been tampered with by a more designing person behind the scenes, a suit is brought setting up a claim for the services for all these years; and because the defendant cannot prove the day and dates when he paid them, a jury think themselves authorized to give a verdict for them. In this case, however, the defendant was not so deficient in testimony. He had the acknowledgment of the plaintiff, after the time had elapsed when the services were said to have been rendered, that the defendant owed him nothing; that he, defendant, had done more for him (plaintiff) than his services were worth, and he wanted no settlement. Besides, the defendant proved the payment of debts for plaintiff, the furnishing him with clothes, and other matters, showing that this acknowledgment of the plaintiff was true, and made in good faith before his honesty had been tampered with and his avarice excited by another.

WHEELER, J.

It is insisted that the court erred, 1st, in not dismissing the case for the want of jurisdiction; 2d, in excluding the testimony of the witness Wilson; and, 3d, in refusing a new trial.

1. The first objection to the judgment here taken cannot be maintained. The 11th section of the act of 1846, (Hart. Dig., p. 243,) in force when this suit was brought, contemplates the bringing of a suit against a non-resident defendant in a case like the present. And although that section was subsequently repealed, the 13th section of the act of 1848 (which contains the repealing clause) is a substantive re-enactment of the 11th section of the former act, under which this suit was brought. (Hart. Dig., p. 269.) The statute appears to have been strictly complied with, and the action was rightly maintained.

This case does not come within the principle of the decision of this court in the case of Ward v. Lathrop, decided at the December Term, 1849. In that case neither plaintiff nor defendant was a resident of this State; nor did it appear that there was any property of the defendant within its limits. There was neither person nor property subject to the jurisdiction of the court. Here it is otherwise. The plaintiff is a resident of the State, and is entitled to the process of the court to protect and enforce his legal rights against a non-resident whose person or property he may find subject to that process. He may sue the non-resident as a “transient person,” under the provision of the 1st section of the act of 1846, (Hart. Dig., p. 241,) if found temporarily sojourning here; and if not to be so found, the object of the statute under which this suit was brought doubtless was to enable him to sue and obtain service by publication. The nonresidence of the defendant constitutes no objection to the jurisdiction, however the judgment might be regarded if sought to be enforced in a foreign State. (Story on Con. Laws, secs. 539, 540, 548, 549, and notes; 9 Mass. R., 466.)

2. The second ground of error relied on requires a revision of the ruling of the court in excluding the testimony of the witness Wilson. The object of this testimony was to show that the bringing of the suit had been induced by a third party, Spellings, under a contract illegal and void for champerty.

That the testimony offered did go to prove such a contract as known to the common law between the plaintiff and Spellings is unquestionable. (4 Bl. Comm., 135; 1 Inst., 368.) But it may well be questioned whether a contract between the plaintiff and the third party, though void for champerty, can constitute a defense to the action, as between the...