Runnels v. Belden

• Decision Date: 01 January 1879
• Citation: 51 Tex. 48
• Parties: F. M. RUNNELS ET AL. v. J. C. BELDEN, EXECUTOR.
• Court: Texas Supreme Court

51 Tex. 48

F. M. RUNNELS ET AL.

v.J. C. BELDEN, EXECUTOR.

Supreme Court of Texas.

1879.

APPEAL from Tyler. Tried below before the Hon. H. C. Pedigo.

November, 1877, Angus McLeod brought suit in the District Court of Tyler county for $3,150 alleged to have been deposited by him with F. M. Runnels and wife, and not returned.

Defendants demurred, pleaded general denial, claimed the amount received was less than alleged; that it was a gift by plaintiff to the wife of Runnels, who was daughter of plaintiff.

Pending the suit the depositions of the plaintiff were taken, he being aged and infirm, testifying that he had deposited the money as alleged with the defendants at their request for safe-keeping, to be returned to plaintiff at his residence on demand, and that he has made the demand, &c. McLeod died, and his executor, J. C. Belden, became plaintiff.

On the trial, the defendant Runnels testified that he had not received the money or any part thereof as a deposit, and offered to prove in behalf of the defense that the money had been given voluntarily by McLeod to his daughter, Mrs. Elizabeth Runnels, and was by her accepted as such as an advancement, and was not to be returned; to which testimony objection was made and sustained.

Judgment was rendered for the plaintiff for amount sued for. Defendants appealed.

Willie & Cleaveland, for appellants, cited Paschal's Dig., arts. 6826, 6827; Mumm v. Owens, 2 Dill., (U. S. Cir. Ct.,) 475; Munroe v. Napier, 51 Ga., 385; Alexander v. Lewis, 47 Tex., 491;Donley v. Bush, 44 Tex., 1;Merrill v. Atkin, 59 Ill., 20;Roberts v. Yarboro, 41 Tex., 449.

Stephen P. West, for appellee, cited Paschal's Dig., arts. 6826, 6827; Markham v. Carothers, 47 Tex., 25;Roberts v. Yarboro, 41 Tex., 449; Greenl. Ev., 418; Ables v. Miller, 12 Tex., 109;Burleson v. Burleson, 28 Tex., 410;Lobdell v. Fowler, 33 Tex., 346;Sears v. Dillingham, 12 Mass., 358.

MOORE, CHIEF JUSTICE.

The exception which the second section of the act of May 19, 1871, entitled “An act further regulating proceedings in the several courts of the State of Texas,” makes to the general rule, that no person should be excluded from testifying in civil actions in the courts of this State on account of color, nor because he is a party to the cause, or interested in the issue to be tried therein, clearly shows that it was the intent and purpose of the Legislature to place the parties on terms of equality in presenting to the jury their respective versions of the transactions between them, and not merely the ex-parte testimony of the survivor respecting them, which, but for this exception, would be admissible under the first section of the act.

But to hold, as the court did in this case, when an action is being prosecuted by the executor of the original plaintiff, that the defendant may not testify regarding a transaction with, or statement by the original plaintiff, though the executor has put in evidence the...