Pauska v. Daus

• Decision Date: 31 January 1868
• Citation: 31 Tex. 67
• Parties: JOSEPH PAUSKA v. LEOPOLI DAUS.
• Court: Texas Supreme Court

31 Tex. 67

JOSEPH PAUSKA

v.LEOPOLI DAUS.

Supreme Court of Texas.

January, 1868.

The 11th section of the act of 4th May, 1846, reads as follows: “It from any cause no jury has been drawn, as contemplated in the preceding sections of this act, or no venire has issued, or the venire be quashed, or the array challenged, or whenever none of the jurors returned upon the venire are in attendance upon the court, the court shall have power to direct the issuance of a venire facias, commanding the sheriff or other officer to summon the requisite number of legally qualified jurors; and such venire may be made returnable at such times as the court may direct, and upon the return thereof the same proceedings shall be had as in cases where the jury has been regularly drawn.” Pas. Dig. art. 3985. Even if it be true that the jury-list has not been made and the jury drawn, as required by the preceding articles, everything will be presumed in favor of the legality and regularity of the action of the court until the contrary appears. Tweedy v. Briggs & Yard, post, 74??

Where depositions had been taken in Mexico by “a vice commercial agent,” the objection goes to “the manner of taking depositions,” and it must be in writing. Pas. Dig. art. 3742, note 85; 110 Tex. 524;14 Tex. 341;15 Tex. 113.

The object of the rule is to prevent technical objections and surprise.

The amendatory act of 17th December, 1861, gives interest upon open accounts at the rate of eight per centum from the 1st of the following January after they are made. Pas. Dig. art. 3940, note 930.

If the contract be made in a foreign country, the law of interest will be presumed to be the same as our own, unless the contrary be averred and proved. Pas. Dig. art. 3708, note 834; 10 Tex. 350;17 Tex. 102.

Where the question of the right of negroes to sit upon a jury did not appear otherwise than in a motion for a new trial, it cannot be revised.

APPEAL from Harris. The case was tried before Hon. BENJAMIN SHROPSHIRE, one of the district judges.

The petition was for the balance of an open account, and did not aver where the account was made or payable. But the plaintiff made affidavit to it in Matamoros, Mexico. The defendant pleaded the general issue, payment, set-off, that interest was only due after the 1st of January, 1866, and specially against some items. The jury found a verdict for the amount of the account and interest.

The bill of exceptions stated that the defendant objected that none of the jurors' names were on the jury-list, but there was no statement of any proof about it. Also that the defendant objected to the officer before whom the depositions were taken; and the court overruled the objection because it was not in writing. Also that the defendant objected to interest of Texas being allowed. There was no statement of facts in the record, nor were the depositions of the witnesses set out, nor the certificate of the officer taking them. The errors assigned are indicated in the p??ion.

Henderson & Whitfield, for appellant. I. The jury impaneled to try this cause was not competent under the constitution and laws of the state of Texas. The act regulating juries, approved 4th May, 1846, provides that the county court shall meet on the first Monday of July each year, and prepare a list of qualified jurors, who shall be men of good moral character, qualified electors in the county under the constitution, freeholders in the state, or house-holders in the county. Pas. Dig. art. 3975.

The defendant in the court below challenged each and all of said jurors, and based his objection under article 3040 of Paschal's Digest, which provides that objection to jurors may be made for any of the following reasons, and the second reason is, “that his name is not upon the list required to be kept by the county court from which jurors are drawn.” Not one of the jurors impaneled in this case had his name upon the jury-list. Section 12, article 1, of the constitution provides that the right of trial by jury shall remain inviolate.

General order No. 13, issued by General Griffin, did not abolish the requirements of the laws of Texas, but merely added another qualification to jurors, that before a man should sit as a juror he must possess the qualifications required by law and be enabled to take the oath required by act of congress approved July 2, 1862.

Nine of the jurors were negroes, and at that time were not allowed to vote either by state or federal laws, hence they were not electors.

II. There was manifest error in the ruling of the court which permitted the deposition of J. Reymershoffer to be read, and in overruling the objections of defendant's attorneys. The deposition was not of that character which required a written objection to be filed with the clerk of the court. The objection was not to the form of the deposition or the manner of its taking, but to the deposition itself, as having been taken before a vice commercial agent, an officer unknown to the laws of the state of Texas. Pas. Dig. art. 3742. By reference to article 3730 of Paschal's Digest it will be seen that no such officer as vice commercial agent was authorized to take depositions, and the deposition taken by such an individual has no higher standing than if it had been taken by an individual citizen of Mexico.

III. The cause of action was an open account contracted at Matamoros, in the republic of Mexico. By the Mexican law the rate of interest is five per cent. from the time of payment expressed in the contract, or from the time of express or judicial demand. Davis v. Thorne, 6 Tex. 486;Chavelier v. Buford, 1 Tex. 505.

Interest is a creature of the statute, and cannot be given in a case not embraced in its terms. Close v. Fields, 2 Tex. 238.

Open accounts contracted in Mexico and payable there are not embraced in our statute allowing interest on open accounts.

Matamoros being in the republic of Mexico, a foreign country, if interest is sought to be recovered it should have been alleged and proved.

The contract, if any, was made in Mexico, to be performed there; interest, as governed by the laws of Mexico, should have been alleged, and not in accordance with the laws of Texas. 3 Johns. Ch. 610;Boyce v. Edwards, 4 Pet. 111; Winthorp v. Carleton, 12 Mass. 3; Foden & Slater v. Sharp, 4 Johns. 183; Fanning et al v Consegua, 17 Johns. 510.

No brief for the appellee has been furnished to the reporter??

LINDSAT, J.

This is a suit brought by the appellee against the appellant upon an open account, and upon which judgment was obtained in the court below on the verdict of the jury for the amount of the account and interest from the 1st of January succeeding the date of the assumpsit up to the finding of the jury. It appears that the plaintiff in the court below was a resident of Matamoros, Mexico, where the liability was contracted.

On the trial of the cause in the district court four several exceptions were taken to the proceedings there had, and are relied upon as grounds for reversal in this court.

1. It is insisted that the court committed an error in overruling the objections of defendant to each and all of the jurors impaneled and sworn to try the cause, because no one of them was upon the list made by the county court of Harris county, as is required by law, and that each of said jurors was challenged for cause as he was presented.

Governments would be very remiss in their duties to their citizens or subjects if they failed to make provision against the neglects and delinquencies of their agents or officers. Their laws almost universally prescribe the duties of public...