Russell v. Farquhar, Case No. 2953.

CourtSupreme Court of Texas
Writing for the CourtMOORE
Citation55 Tex. 355
PartiesR. M. RUSSELL ET AL. v. JOS. M. FARQUHAR ET AL.
Decision Date27 June 1881
Docket NumberCase No. 2953.

55 Tex. 355

R. M. RUSSELL ET AL.
v.
JOS. M. FARQUHAR ET AL.

Case No. 2953.

Supreme Court of Texas.

Jun. 27, 1881.



[55 Tex. 356]

APPEAL from Bastrop. Tried below before the Hon. J. P. Richardson.

The case is sufficiently stated in the opinion.

Chandler, Carleton and Robertson, for appellants.


I. To show that the judgment and decree was not admissible before it was recorded, it is only necessary to read art. 4710, Paschal's Digest, p. 791, for it is the only evidence of title offered by defendant that can be found in the statement of facts. Art. 4710 has never before been entirely ignored by any court until this instance. In Secrest v. Jones, 21 Tex., 132, the validity of this article is recognized and declared to embrace in its provisions an act of partition made in December, 1833, and in the same case (30 Tex., p. 597) it is said that the record of said act since the case was formerly before the court rendered it admissible. That the decree allowed to go to the jury in this case comes clearly within the purview of said article 4710, is too clear for argument. Hence we think the first assigned error must reverse this case.

Timmons & Brown, for appellees.


MOORE, CHIEF JUSTICE.

This is an action of trespass to try title, for damages and for partition of two labors and ninety acres of land described in the petition. Appellee, the defendant in the court below, pleaded not guilty, res adjudicata, and the subsequent ratification of the judgment referred to in the previous plea. Or in other words, that plaintiffs were estopped from denying or controverting the validity and binding force and effect of said judgment.

On the trial of the cause appellees offered in evidence a certified copy of a judgment of the district court of Fayette county, rendered May 20, 1859, and a certified copy of the proceedings had therein, to which suit appellants, appellee and others were parties, and wherein

[55 Tex. 357]

the right to the land which appellants now seek to recover and have again partitioned was determined and partitioned.

To the introduction of which the appellants made substantially the following objections:

1. Said purported copy of transcript is not verified by a certificate of the legal custodian of the original papers, of which it purports to be a copy.

2. Said judgment and transcript show upon their face that the suit in which said judgment was rendered, and of which said transcript purports to be a copy, was between different parties than those to this cause, and that other and different property than that involved in this suit was the subject of litigation in that case.

3. A copy of said judgment is not shown to have ever been recorded in the office of the clerk of the county court of Fayette county, where the land involved in this suit lies.

4. Said transcript contains an agreement concerning land which is not shown to have ever been recorded, and notice of it had not been filed among the papers in this case for three days before the commencement of the trial, nor any notice of such filing given appellants.

All which objections were overruled and said certified copy of judgment and transcript of proceedings were read in evidence by appellee, to which appellants took their bills of exception.

Though other errors are assigned for the reversal of the judgment, these bills present for our consideration all the questions upon which from their argument counsel seem to rely for the reversal of the judgment, or which seem to be necessary that we should consider for the correct determination of the case.

We confine ourselves, therefore, to the consideration of the objections made by appellants to the admissibility in evidence of the certified copy of the judgment and transcript

[55 Tex. 358]

of the proceedings in said former suit, in the order we have stated them above.

To the first of these objections it will suffice to say that it is not sustained by the record. But on the contrary, the record shows that both the copy of the judgment and of the transcript were certified to by the proper officer and legal custodian of the papers and records, copies of which were offered in evidence.

To the second we reply, while it is true that it appears on the face of said transcript and judgment that there were other parties as well as other property involved in the former suit than in the present case, as appellants and appellee were parties to it, and as all the property involved in this suit and all the questions concerning it, which appellants now seek to have adjudicated and determined were then considered, we are unable to perceive that the mere fact that there were parties interested in that suit who are not in this, or because there was property involved in it which is not now in controversy, in any way detracts from the force and effect of that judgment as between these parties, or furnishes a reason, if not otherwise objectionable, why said certified copies were not admissible in evidence in this case.

It is next claimed for appellants that the court, in overruling their third ground of objection to the introduction of these copies, violated an absolute and imperative rule of evidence expressly prescribed by the legislature for its guidance, or that the construction of the statute insisted upon by them has always been heretofore recognized and observed by this court. If these propositions can be maintained, it must be admitted that the ruling of the court below on this objection was erroneous. For we concede as freely as any, that the enactment of laws pertains solely to the...

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45 practice notes
  • State v. Rhine, No. PD-0912-08.
    • United States
    • Court of Appeals of Texas. Court of Criminal Appeals of Texas
    • September 23, 2009
    ...782, 785 (Tex.Crim.App.1991); Copeland v. State, 92 Tex.Crim. 554, 244 S.W. 818, 819 (Tex.Crim.App.1922). See also Russell v. Farquhar, 55 Tex. 355, 359 (1881). Only the legislature can exercise that power, subject to restrictions imposed by the constitution. TEX. CONST. art. II, § 1. These......
  • Galveston, H. & S. A. Ry. Co. v. Davidson
    • United States
    • Court of Appeals of Texas
    • March 21, 1906
    ...inadvertance or otherwise, by the Legislature to express its intent, and to follow which would pervert that intent.' Russell v. Farquhar, 55 Tex. 355." Now, what are the facts to which these rules may apply? That since the decision of the case of Western Union Telegraph Co. v. State of Texa......
  • Permian Oil Co. v. Smith, Motions No. 11501.
    • United States
    • Supreme Court of Texas
    • April 7, 1937
    ...the parties and under the general provisions of the registration laws, admissible without registration." Also in Russell v. Farquhar, 55 Tex. 355, it is said: "* * * the statute properly construed did not require the registration of the former judgment to render it admissible in a subsequen......
  • State v. Swift & Co., No. 9481.
    • United States
    • Court of Appeals of Texas
    • March 21, 1945
    ...The State and Swift are the adversary parties in both suits as to whether Swift's ownership of the stock was lawful. Russell v. Farquhar, 55 Tex. 355. Page 138 does the fact that Consumers, which was not organized either at the time of the original decree in 1915 or at the time of the order......
  • Request a trial to view additional results
45 cases
  • State v. Rhine, No. PD-0912-08.
    • United States
    • Court of Appeals of Texas. Court of Criminal Appeals of Texas
    • September 23, 2009
    ...782, 785 (Tex.Crim.App.1991); Copeland v. State, 92 Tex.Crim. 554, 244 S.W. 818, 819 (Tex.Crim.App.1922). See also Russell v. Farquhar, 55 Tex. 355, 359 (1881). Only the legislature can exercise that power, subject to restrictions imposed by the constitution. TEX. CONST. art. II, § 1. These......
  • Galveston, H. & S. A. Ry. Co. v. Davidson
    • United States
    • Court of Appeals of Texas
    • March 21, 1906
    ...inadvertance or otherwise, by the Legislature to express its intent, and to follow which would pervert that intent.' Russell v. Farquhar, 55 Tex. 355." Now, what are the facts to which these rules may apply? That since the decision of the case of Western Union Telegraph Co. v. State of Texa......
  • Permian Oil Co. v. Smith, Motions No. 11501.
    • United States
    • Supreme Court of Texas
    • April 7, 1937
    ...the parties and under the general provisions of the registration laws, admissible without registration." Also in Russell v. Farquhar, 55 Tex. 355, it is said: "* * * the statute properly construed did not require the registration of the former judgment to render it admissible in a subsequen......
  • State v. Swift & Co., No. 9481.
    • United States
    • Court of Appeals of Texas
    • March 21, 1945
    ...The State and Swift are the adversary parties in both suits as to whether Swift's ownership of the stock was lawful. Russell v. Farquhar, 55 Tex. 355. Page 138 does the fact that Consumers, which was not organized either at the time of the original decree in 1915 or at the time of the order......
  • Request a trial to view additional results

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