Punderson v. Love

• Decision Date: 31 December 1848
• Citation: 3 Tex. 60
• Parties: A. PUNDERSON v. G. H. LOVE
• Court: Texas Supreme Court

3 Tex. 60

A. PUNDERSON

v.G. H. LOVE

Supreme Court of Texas.

December Term, 1848.

Appeal from Brazos County.

Without a statement of all the evidence, this court will not undertake to investigate the merits of the cause.

Under the plea of “not guilty,” in an action of trespass to try title, the defendant is at liberty to give in evidence special matter of defense. [11 Tex. 662; 16 Tex. 563;25 Tex. 271.]

It is the duty of the appellant, not of the appellee, to see that the record is properly brought up for revision in this court.

A judgment is not to be reversed for every irregularity, or error, in mere matters of form not affecting the rights of the parties, or the merits of the controversy.

Until the contrary appear, it will be presumed that the court below acted, in all things, rightly. [2 Tex. 581, 594;7 Tex. 463;13 Tex. 394;28 Tex. 263.]

The facts of this case are stated, in the opinion of the court, as far as the reporters are able to give them. The originals of the several exhibits used as testimony at the trial, and referred to in the opinion, were sent up to this court by the order of the district judge (except exhibit X), and were not copied in the transcript of the record. These originals have since been withdrawn, by the permission of the court, and cannot now be referred to for the purpose of giving a more detailed statement of the case.

A. M. LEWIS and RIVERS for appellant.

WEBB for appellee.

Opinion of the court delivered by Mr. Justice WHEELER:

This suit was instituted by the appellant to try the title and recover of the appellee the possession of a tract of land.

The defendant first filed a general denial, and subsequently an “amended answer,” in which he alleges that he entered, and is now settled upon a certain tract of land, in good faith, believing the same to be vacant, and has made valuable improvements thereon; that his entry was made in 1842, agreeably to law, but was not surveyed until 1848 in consequence of a vacancy in the office of county surveyor -- concluded by making an exhibit of his field notes, and claiming the benefit of all laws enacted for the benefit of settlers in good faith.

The trial involved a controversy as to boundaries.

It appears from a bill of exceptions taken by the plaintiff, that the defendant offered in evidence a certificate marked X (not embraced in the transcript or sent up with the record), and also three several surveys made by the county surveyor, and proved by him and one of the chain carriers, which surveys are made a part of the bill of exceptions and marked E, G and H; to the introduction of which the plaintiff objected, but the court overruled the objection.

There was a verdict, a motion for a new trial overruled, and judgment for the defendant; from which the plaintiff appealed.

By order of the court the original papers, used on the trial of the cause, were sent up with the transcript of the record.

There is in the record no statement of facts, and hence, so much of the argument as proceeds upon the supposition that we have the evidence before us, and can revise the finding upon the merits, it will not be necessary particularly to notice. Nothing can be more clear than that, without a statement of all the evidence, we cannot undertake to investigate the merits and determine to whom the land in controversy belongs.

The only question which is presented for revision by the record is, as to the propriety of the ruling of the court, presented by the bill of exceptions. In this ruling we can perceive no error. The various surveys, admitted in evidence, appear to have been made by the proper officer, and to have been duly proved. They expressly relate to and tend to establish the boundaries of the land in controversy. Prima facie, therefore, they were admissible. They may have been rebutted and their force repelled by other evidence, but it is difficult to perceive any legal ground upon which their admissibility could have been contested.

But if the certificate and field notes, embraced in the exceptions, did not, as separate links in the chain of evidence, upon their face, appear to have been admissible, yet, they may have been so connected and identified with other evidence not brought up in the record as to have been admissible and most material evidence in the case. The act of 1844, p. 70, sec. 5, seems to have contemplated that under the plea of “not guilty” in this action, the defendant should be at liberty to give in evidence special matter in his defense, and if, in any aspect of the case, these surveys could have been appropriate to his defense, they certainly were admissible. That they may have been so appropriate, either to rebut the plaintiff's evidence of title to the particular lands in question, or to support some matter of defense relied on and available under the pleadings, is sufficiently apparent.

It is insisted that the court should have sustained the objection to the introduction of the paper marked A, because there were filed in the cause four other papers marked A. What relevancy or pertinency that fact could have to the plaintiff's right to give in evidence any particular paper, or to adduce proof of any particular fact, it is, indeed, difficult to perceive. That the paper may have been made an exhibit in the pleadings unnecessarily, was a matter wholly immaterial, and in no way affecting its admissibility in evidence, since the objection did not present any question of variance between the evidence and pleadings.

That the paper, designated in the bill of exceptions by the letter X, is not sent up in the transcript, cannot be ascribed to the fault of the appellee. Nor is it his fault that the court has seen fit, at the instance of the appellant, to send up some of the original papers in the cause. The appellee surely ought not to be visited with all the costs of this proceeding, and the expense and vexation of another trial in consequence of the gratuitous acts of others in which he has not participated, and when he has himself committed no fault. It is the duty of the appellant, not of the appellee, to see that the record is properly brought up and presented here for revision.

But the presumption is, that a case was presented to the court below, which made it proper for the judge to make the order by which some of the original papers are before us. We understand the rule of this court, upon that subject, to be directory, and not so arbitrary and inflexible as to overbear every consideration affecting the justice and law of the case. We do not understand the law to be, that for every...