Rice v. Ward

• Decision Date: 07 May 1900
• Citation: Rice v. Ward, 56 S.W. 747, 93 Tex. 532 (Tex. 1900)
• Parties: RICE et al. v. WARD et al.
• Court: Texas Supreme Court

56 S.W. 747

RICE et al. v. WARD et al.

Supreme Court of Texas.

May 7, 1900.

Error from court of civil appeals of Third supreme judicial district.

Action by John Ward and others against William M. Rice and others. From a judgment in favor of plaintiffs, affirmed by the court of civil appeals (54 S. W. 318), defendants brings error. Reversed.

Baker, Botts, Baker & Lovett, Finks & Gordon, and L. W. Goodrich, for plaintiffs in error. Geo. Clark, Z. I. Harlan, Rice & Bartlett, and Sam R. Scott, for defendants in error.

BROWN, J.

On June 19, 1895, the defendants in error, the surviving wife, the heirs and devisees, of S. S. Ward, deceased, filed their original petition in the district court of Falls county against the plaintiffs in error, in which they prayed for a decree declaring a deed absolute in form to be a mortgage. The deed was executed by S. S. Ward to William M. Rice on the 9th day of March, 1868, and conveyed the land described in the plaintiffs' petition. The petition alleged, in substance, that on the date named S. S. Ward was indebted to William M. Rice & Co. in about the sum of $600, to secure which Ward conveyed the land described in the petition to the said William M. Rice by the deed set up and described therein. The plaintiffs asked that the said deed be held and declared to be a mortgage to secure the said sum of $600, and that the said William M. Rice be charged with the rents of the land during the time that he had held the same, and offering to pay whatever balance there was remaining unsatisfied of the said debt. In the view that we take of the case, it is unnecessary for us to state the pleading more in detail, or to state the facts as found by the court. The pleading alleged and the court found that the evidence established facts which prevented the running of the statute of limitations in favor of William M. Rice. Upon a trial before a jury it was found that the deed was executed to secure a debt of about $600, and that Rice was charged with a certain amount of rents, which being deducted from the $600 and interest, left due to Rice upon the debt $1,045. The court gave judgment declaring the deed to be a mortgage, adjudging that upon the payment of the balance secured to Rice & Co. the plaintiffs in the court below should recover the land described in the petition. This judgment was affirmed by the court of civil appeals.

The plaintiffs in error present objections to the judgment of the district court, but we are of opinion that the court of civil appeals properly disposed of all of them except that one which challenges the correctness of the ruling of the court in refusing to suppress the depositions of the witnesses Capps and Reed. We shall not discuss any of the assignments except that, and shall make no statement of the facts except as they bear upon the question to be decided. The plaintiffs' case depended largely upon the evidence of the witnesses Capps and Reed, who were both residents of the Indian Territory, at or near the town of Ardmore, and had resided there for a number of years. The plaintiffs filed interrogatories to the said witnesses, which were crossed, a commission issued, and the answers taken and returned, when the defendants in the court below moved the trial court to quash the depositions of both witnesses, for the reason that the plaintiffs' counsel had furnished to the officer who took the deposition of each witness a written statement of what each of the said witnesses knew and would answer in reply to each of the direct and cross interrogatories, and that the said officer had used the said memoranda in taking the deposition of each of the said witnesses. The court overruled the motion to quash, to which action the defendants reserved and took a bill of exceptions, which shows the following facts: After the direct and cross interrogatories had been filed, S. R. Scott, an attorney at law, and one of the parties to the record, procured T. J. Lee, an attorney of Waco, to go to Ardmore, in the Indian Territory, for the purpose of securing an officer to take the depositions of both of the witnesses. At Mr. Lee's request, Mr. Scott made out a memorandum in writing, which he testifies to as follows: "He wrote, `To this question [indicating a particular number] the witness knows the following facts.' That this was done to each direct and cross interrogatory, and that the numbers of said memoranda corresponded with the interrogatories. That his said purpose in making the memoranda was to draw from the witness all that he knew material to plaintiffs' case; that is, in case said witness, in responding to the interrogatories, omitted to state facts which he had previously told him he knew, he wished the notary to refer to said memoranda, and refresh his memory. That he never intended that the memoranda should be used as a means of leading the witness. That he did not know where the memorandum now is, and could not find the same. That the memorandum was written at the suggestion of said Lee, who told him that he (Lee) would not remember all the facts that said witnesses knew, and said that witness had better write out the facts that said Reed and Capps knew, as above indicated. That when said Reed and Capps were in Texas, in August, 1897, witness had gone over the case thoroughly with them, and was familiar with what they told him they would testify to. That witness knew what said Capps' and Reed's answers would be to the cross interrogatories as he did to the others. * * * My understanding is that it is a common occurrence in the practice, especially in a matter of importance, when you desire interrogatories and depositions returned in proper shape, so that it will not be necessary to have them retaken, to have a memorandum in the hands of the officer taking the depositions; at least it is not an uncommon practice." Lee delivered the memorandum made by Scott to I. H. Sturgeon, a notary public, who resided at Ardmore, in the Indian Territory, together with the commission and the interrogatories, with directions to take and return the depositions of the two witnesses. The memorandum was not returned with the depositions, and the evidence shows that it had been lost, and was not produced upon the trial. I. H. Sturgeon, the officer who took the depositions, testified, in substance, as follows: "That he was the notary who took and returned the depositions of said Capps and Reed on January 5, 1898. That Mr. Lee had one of the witnesses brought before him on the day that he gave him the depositions. That, at the time, Mr. Lee gave him a subdivided memorandum, which showed what was desired to be brought out in each answer to the direct and cross interrogatories. That his idea was that the memoranda was to be used in getting the answers in good form, so as to show the points desired to be brought out. That in taking said testimony that he (Sturgeon) read the interrogatories over to the witnesses, and had them make their answers in full. That in some instances he used the witness' exact language; in many instances used the language of the memoranda in framing the answer as far as they would conform to the exact language of the witness in substance. That neither witness read nor heard read the contents of the memoranda, or any portion thereof, before he read the interrogatories to them, except in a few instances,—three or four; possibly five. That in such instances the witness gave him an idea of what he wanted in his answer, but found some difficulty in expressing himself; and that, after he (Sturgeon) got an idea of what the witness wanted to state, if it corresponded with the memoranda, read the memoranda to him, and asked him if it was correct; and, if he replied yes, that he (Sturgeon) wrote it that way, and that, if the witness objected to anything, he cut it out. That possibly in a few instances the memoranda suggested facts to the witnesses which they had not before thought of, but to which they heartily assented. That he (Sturgeon) thinks very few, if any, of the answers of said witnesses as returned by him are exact copies of the memoranda. That, if there are any such, witness has no means of distinguishing these from those that are not. That witness' recollection was that he returned the memoranda to Mr. Lee at Waco. Did not have it in his possession. That said witnesses were examined separately and apart. * * * I took the answers of the witnesses in substance. I did not add anything to their answers, nor did I leave anything out. If I did, I did not do it intentionally. I did not suggest to either of the witnesses what any of their answers should be. In some instances the memorandum which I had suggested facts which the witness had forgotten to mention, but which he readily assented to as soon as his memory was refreshed. No effort was...