Ramirez v. Acker

• Decision Date: 17 April 1940
• Docket Number: No. 7560.,7560.
• Citation: 138 S.W.2d 1054
• Parties: RAMIREZ v. ACKER et al.
• Court: Texas Supreme Court

Page 1054

138 S.W.2d 1054

RAMIREZ v. ACKER et al.

No. 7560.

Supreme Court of Texas.

April 17, 1940.

Error to Court of Civil Appeals of Ninth Supreme Judicial District.

Suit in trespass to try title by John Ramirez against William Acker and others. To review a judgment of the Court of Civil Appeals, 124 S.W.2d 905, affirming a judgment adverse to plaintiff, plaintiff brings error.

Affirmed.

Clarence A. Miller and L. P. Lollar, both of Houston, for plaintiff in error.

Kayser, Liddell, Benbow & Butler and Jack Binion, all of Houston, for Arnett et al.

S. O. Lovejoy, of Houston, for Wofford.

SHARP, Justice.

This is a trespass to try title suit. John Ramirez filed suit against Mrs. Sophie Acker and husband, William Acker, W. C Arnett and wife, Lura Arnett, and Luke Wofford, and others, to recover lots 1, 2, 3, 4, 6, 7, 8, 9, and 10 of tract No. 144, South Houston Gardens No. 6, subdivision of the H. T. & B. B. R. R. Company, said lots containing about three acres of land, and being situated in Harris County, Texas. He also sought to recover 6,887.5 square feet of land adjacent to and immediately east of said lot 144, and alleged that the defendants Acker claimed lot 4 and the 6,887.5 square feet described in his petition, and that defendants Arnett claimed lot 10, and that defendant Wofford claimed lot 7. His ground for recovery was based on the ten years statute of limitation. The cause was submitted to a jury on special issues, and, based upon the findings of the jury, the trial court entered judgment for the defendants. Ramirez appealed to the Court of Civil Appeals, and the judgment of the trial court was affirmed. 124 S.W.2d 905.

Reference is here made to the opinion of the Court of Civil Appeals for a detailed statement of the testimony contained therein.

A writ of error was granted by this court because of the argument of counsel in the trial court.

It is shown by the opinion of the Court of Civil Appeals that most of the defendants have settled with the plaintiff, and the issues existing between them and Ramirez are not involved here. Ramirez saw fit to include in the suit several persons claiming different tracts of land. They were represented by different counsel, and each relied on a distinct and separate defense. They did not make a common defense. The argument to which objection was made in the trial court was made by counsel for parties who have settled their differences with Ramirez and who are not interested in the outcome of this case. We are concerned here only with the argument made by counsel for the Ackers and the Arnetts, who claimed part of the land sued for.

The frequency with which this court is called upon to review assignments complaining of arguments of counsel in the trial of cases impels us to restate briefly some of the rules relating thereto. The rule has long been in force in this State that "counsel shall be required to confine argument strictly to the evidence and to the argument of opposing counsel." See Rule 39, relating to district and county courts. The scope of argument by counsel to the jury is always under the supervision of the court. It is the duty of the court to maintain decorum during the trial of a case, and to require counsel to limit argument to the facts in evidence. Great latitude is allowed counsel in discussing the facts and issues. Counsel are permitted to show the environments of the case; they may comment upon the bias or interests of the parties and witnesses, and may discuss the reasonableness or unreasonableness of the evidence and its probative effect or lack of probative effect; but such latitude extends only to the facts and issues raised by the evidence in the case. It is only by adhering strictly to this rule that the rights of litigants can be protected and the law administered justly and impartially.

This court has announced two principal rules relating to the effect of arguments made by counsel in the trial of a case.

One rule is: If counsel goes outside of the record, or indulges in inflammatory language, in order to influence the jury to return a verdict favorable to his client, or if he gives the jury information not in evidence, calculated to injure the opposing side, and such argument is not in reply to argument of opposing counsel, this constitutes misconduct, and requires a reversal of the case; unless it clearly appears that no injury resulted to the other side. And it is the duty of the court upon its own motion to repress such argument. Where the argument of counsel is so prejudicial or inflammatory that no instruction from the court would cure the error, the duty does not rest upon opposing counsel to object to the argument and request the court to instruct the jury not to consider same. This rule has long prevailed in this State, and has been approved many times. 41 Tex.Jur. p. 801, sec. 78, pp. 815, 816, sec. 85; Willis & Bro. v. McNeill, 57 Tex. 465; Robbins v. Wynne, Tex.Com.App., 44 S.W.2d 946; Bell v. Blackwell, Tex.Com.App., 283 S. W. 765; Prather v. McClelland, Tex.Civ. App., 26 S.W. 657.

In the early case of Willis & Bro. v. McNeill, supra, in discussing rules controlling arguments made by counsel in the trial of cases before juries, this court said: "Under these rules the duty devolves affirmatively, first, upon counsel to...