Parker v. Chancellor

• Decision Date: 18 November 1890
• Court: Texas Supreme Court
• Parties: PARKER v. CHANCELLOR <I>et al.</I>

15 S.W. 157

PARKER v. CHANCELLOR et al.

Supreme Court of Texas.

November 18, 1890.

Appeal from district court, Tarrant county; R. E. BECKHAM, Judge.

Jas. C. Scott, for appellant. O. S. Kennedy, Ross, Champman & Ross, and Bowlin & Bowlin, for appellees.

GAINES, J.

This is the same case which was decided by this court at the Austin term, 1889, and which was then reversed and remanded. 11 S. W. Rep. 503. Before the trial, which resulted in the judgment from which this appeal is taken, several of the defendants were conceded to have title by limitation, and demanded severances and obtained judgments for the tracts of land respectively claimed by them. This branch of the case was tried against defendants Wilson, Strohl, Ellington, Diana Welborne, and her husband, and E. M. Chancellor and her husband, and resulted in a judgment in their favor upon a general verdict.

Before the trial was entered upon, the court, upon motion of plaintiff's attorney, suppressed her deposition, taken at the instance of the defendants, upon the ground that there is no affidavit indorsed thereon showing how it came into the hands of the clerk. During the progress of the trial the court permitted the deposition to be read by defendants, over the objection of plaintiff. This was not error. The note of the judge, appended to the bill of exceptions, shows that before the evidence was admitted it was proved by a witness, who was present while the deposition was taken, that he saw the plaintiff subscribe her answers. The answers were properly admitted. As admissions of the plaintiff, they were proper evidence for the defendants. Edwards v. Norton, 55 Tex. 405; Lacoste v. Bexar Co., 28 Tex. 420.

The plaintiff's objections to the reading in evidence of the answers of Richard Youngblood to the seventh interrogatory propounded to him by defendants were not well taken. The answers were as follows: "She did, after the man Parker had died, that [whom] the heirs had paid her part to, she came back, and said Parker had wasted part of her property, and that he had no power of attorney to act for her; and she sued the heirs for her part, and Richard Odum compromised with her, and paid her other property for her interest in the land certificate, and interest in other property." The first ground of objection was that the answer of the witness to another interrogatory, to the effect that Parker had tried to dispose of his wife's property without her consent, had been stricken out by the court upon motion. We fail to see how the exclusion of that answer affected the testimony now under consideration. The other ground of objection was that the records were the best evidence that a suit had been brought. Should it be conceded that the fact that a suit had been brought cannot, as a general rule, be proved by parol evidence, it would not follow that the testimony as to the suit was improperly admitted. The fact was collateral and introductory. It is the practice to admit parol evidence of purely introductory matters for the sake of convenience, although written evidence may be in existence. 1 Starkie, Ev. 503. What we have just said is sufficient to dispose of the alleged error of the court in admitting in evidence the witness Youngblood's answer to the eleventh direct interrogatory.

It is also assigned that "the court erred in permitting the twenty-ninth cross-question to defendants' witness Richard Youngblood, and the answer thereto, to be read to the jury, as follows: `Do you know, of your own personal knowledge, what Lourana Parker ever did with her interest in her father's estate, (I mean David Odum's estate?) If you do, please state your means of information, and then state what she did with it.' The witness answered as follows: `Her interest in the land certificate of David Odum, her father, she traded to Richard Odum for other lands. Her other property, I don't remember what she did with it; she lived twenty miles from me when she left Texas.' Plaintiff objected to reading the answer, because not responsive to the question asked." The objection was made to reading the answer during the progress of the trial. It has been decided that such an objection goes to "the manner and form" of taking the deposition, and that it should be made in writing, and that notice thereof should be given before the commencement of the trial. Railway Co. v. Ivy, 71 Tex. 409, 9 S. W. Rep. 346; Scott v. Delk, 14 Tex. 341; Mills v. Herndon, 60 Tex. 353.

It appears by the record that the trial judge delivered to the jury a charge in writing, that had been marked "Filed," but which he had neglected to sign. This is assigned as error. It has been repeatedly ruled by this court that the mere failure of the judge to reduce his charge to writing before giving it to the jury is no ground for reversal. Railway Co. v. Dunlavy, 56 Tex. 256; Chapman v. Sneed, 17 Tex. 428; Boone v. Thompson, Id. 606; Reid v. Reid, 11 Tex. 585. A fortiori a failure to sign a charge is not reversible error. No possible harm could have accrued to the plaintiff from the failure to sign the charge in this case. It was filed by the clerk at the time of the trial, and was thereby made a record in the case, and its identity placed beyond doubt. The judge properly signed the charge nunc pro tunc, when his attention was called to the omission, by the motion for a new...