Parr v. Johnston
| Decision Date | 01 January 1855 |
| Parties | HIRAM T. PARR, ADM'R, v. DAVID R. JOHNSTON. |
| Court | Texas Supreme Court |
Where there was a motion to strike out a plea, and there was no entry disposing of said motion, but the statement of facts, which was signed by the attorneys of both parties, and approved by the judge, stated that the same had been sustained, it was so regarded by this court; but quære, if the statement of facts had not been signed by the counsel of both parties?
It seems that if the statement of facts should contain statements at variance with formal entries of record, the latter would be regarded, on appeal, as the true exponents of the action of the court below.
A plea “that the note sued on is not the deed or act of the defendant,” supported by oath, is sufficient to put in issue the execution of the note. [[[[[2 Tex. 146;29 Tex. 282.]
Where the defendant, being sued on a note, denied its execution under oath, and put interrogatories to the plaintiff, whether it was not a forgery, and the court below struck out the interrogatories, on appeal, the judgment being reversed and remanded for error in other respects, this court said there did not appear to be any error in striking out the interrogatories; that the plaintiff might have refused to answer on the ground that he was not compelled to criminate himself.
It seems that where a party propounds interrogatories to his adversary which are not responsive to the pleadings, they should be struck out on motion.
Appeal from Gonzales. Suit by appellee against appellant on a promissory note alleged to have been made by the defendant's intestate, Richard Parr, and to have been lost by the plaintiff. Answer that “the lost note sued on or set up in plaintiff's petition was not the deed or act of the deceased Richard Parr.” Interrogatories annexed to defendant's answer:
1st. Was not the note set up in your petition, and alleged to be lost, a forgery?
2d. If you say it was not, state what was the consideration of said note, and where was the same given?
3d. If you answer that the consideration was borrowed money, please state the amount of money loaned by you to Richard Parr, deceased, and what was the rate of interest he was to pay on the same.
The plaintiff's residence was stated in the petition to be in the state of California. The other facts appear from the opinion.
T. S. Anderson, for appellant.
A. N. Mills, for appellee.
This was a suit against an administrator, on a lost note. The defendant pleaded that the note sued on was not the deed or act of the deceased, and made oath that the plea was true to the best of his knowledge and belief. He also filed several interrogatories to be propounded to the plaintiff in the cause. From the statement of facts, it appears that both the plea and interrogatories were stricken out, on the motion of the plaintiff, and this action of the court is assigned as error.
But preliminary to an examination of this assignment, it will be necessary to recur to a point raised in the record and in the argument of counsel for the appellee, viz.: that the plea was not in fact stricken out, and that this is shown by the record of the proceedings in the cause. The statement of facts in this cause has some extraordinary features. It embraces more than properly comes within the scope of a statement of facts. It is ...
To continue reading
Request your trial
- Trammell v. Trammell
-
Thaxton v. Whitesides, 12727.
...of the contention of "non est factum" was that one of the notes was in fact a pledge and not so pleaded by plaintiff. See Parr v. Johnston, 15 Tex. 294. Appellant pleaded that G. C. Thaxton was an accommodation indorser and as to him such notes were without consideration, that the considera......