Schmick v. Noel

• Court: Texas Supreme Court
• Writing for the Court: STAYTON
• Citation: Schmick v. Noel, 64 Tex. 406 (Tex. 1885)
• Decision Date: 19 June 1885
• Docket Number: Case No. 5537.
• Parties: JAMES K. SCHMICK v. N. W. NOEL.

64 Tex. 406

JAMES K. SCHMICK

v.N. W. NOEL.

Case No. 5537.

Supreme Court of Texas.

Jun. 19, 1885.

APPEAL from Eastland. Tried below before the Hon. T. B. Wheeler.

The opinion states the case, except so much as relates to the witness Simerl. The fact was sought to be established by that witness that the plaintiff had secreted himself to avoid the service of process to take his answers to interrogatories. It appears from the record that defendants had offered to prove that the plaintiff had locked himself up in a room of his boarding house to avoid the service of process to take his depositions in answer to interogatories propounded to him by defendant, Simerl being the officer seeking to make service.

The court below gave this reason for excluding the evidence: “The plaintiff ran as a messenger on the train, and was in the habit of sleeping in his room in the day-time; that the depositions were in fact taken and read, and that the plaintiff was on the witness stand and testified.” The record is quite voluminous, involving much which, in view of the opinion, need not be referred to.

Fleming, Moore & Maloney, on the right to read the interrogatories of a party, after examining him orally, cited: R. S., arts. 2239 et seq.;Elliot v. Mitchell, 28 Tex., 111;Boetege v. Landa, 22 Tex., 108;Norvell v. Oury, 13 Tex., 31;Harris v. Leavitt, 16 Tex., 343; The Samuel, 1 Wheat., 9;Weed v. McKellogg, 6 McLean, 44; Bowie v. Talbott, 1 Cranch, C. C., 24; Sexton v. Brock, 15 Ark., 345; Phillips, Ev. (5th Am. ed. by Cowen & Hill), vol. 2, p. 731, note 570.

On the admissibility of the declarations of the vendor, they cited: Garahy v. Bayley, 25 Tex. Sup., 303; Miller v. Jannett, 63 Tex., 82; Bump on Fraudulent Conveyances, pp. 548, 549.

Alexander & Winter, for appellee, on the right to read the interrogatories to plaintiff, cited: R. S., 2234, 2239; Gen. Laws 16th Leg., p. 126; Gen. Laws of 17th Legislature, p. 18.

On the admissibility of the vendor's declarations, they cited: Garahy v. Bayley, 25 Tex. Sup., 301; Ayres v. Duprey, 27 Tex., 599; Miller v. Jannet, 5 Tex. L. Rev., 130; Bump, Fraud. Convey., pp. 566-568.

That the erroneous judgment against the sureties of the sheriff could be cured by a discontinuance of the cause as to them, they cited: R. S., arts. 1351 to 1357, inclusive, pp. 211, 212; Foster v. Van Norman, 1 Tex., 638;Chrisman v. Davenport, 21 Tex., 484;Chandler v. Tanner, 20 Tex., 1;Saffold v. Navarro, 15 Tex., 77.

STAYTON, ASSOCIATE JUSTICE.

N. W. Noel brought suit the 7th of December, 1884, against James K. Schmick, sheriff of Eastland county, and his sureties, for $3,000, for the wrongful conversion of his goods. January 8, 1884, defendants answered, the cause was continued, and, at the June term thereafter, T. Ratto & Co., of Galveston, and Thomas Randall & Nephews, of Dallas, by permission of the court, intervened as defendants, filing an answer substantially the same as the original defendants. The answers consist of general and special demurrers, general denial, and a plea justifying the seizure of said goods by reason of attachments against J. H. Wood, plaintiff's vendor, in favor of intervenors, charging that plaintiff's title was fraudulently obtained, and void as to Wood's creditors. At the same term the court rendered judgment in favor of plaintiff for $1,900, with interest, etc., in accordance with the verdict, from which defendants appeal.

The defendants filed interrogatories to the plaintiff, which were answered, and, on the trial, the plaintiff testified in the cause, after which his answers to the interrogatories were read, the defendants objecting thereto.

That the witness was present furnished no reason why his deposition might not be read, for art. 2234, R. S., if not repealed by the act of April 21, 1879 (General Laws, p. 126), was expressly repealed by the act of March 9, 1881 (Gen. Laws, p. 18).

It was an irregularity to call the witness, and after he had testified to read his deposition; but it was, in effect, but the recalling of the witness, which, in a proper case, the trial court may permit.

These matters of practice rest largely in the discretion of the trial court, and a judgment cannot be reversed for a ruling in respect thereto, in any case, unless it is made to appear that the discretion has been abused in such way as to prejudice the case of the party complaining. No such case is shown by the record before us.

That the declarations of Wood, the vendor of the appellee, made after he had parted with his title to the goods, and when the appellee was not present, were not admissible, is too clear for controversy.

There was no predicate laid for the purpose of using any declaration which Wood may have made in reference to the purpose of his sale to the appellee, in order to impeach his credibility. This is the only purpose for which such declarations could be used.

Cases cited in brief of counsel were cases in which the evidence, after proper predicate was laid, was offered for the purpose of impeaching the credibility of a witness.

The court correctly excluded the testimony of the witness Simerl.

The charge of the court, taken altogether, presented the case very fairly to the jury in so far as the right of the appellants was involved, and there is no reason to believe that the jury were misled thereby in any respect hurtful to them.

Judgment was rendered in favor of the plaintiff against James K. Schmick and the sureties on his official bond as sheriff, and against the persons comprising the firms of Randall & Nephews and T. Ratto & Co.

It was further adjudged that the sheriff and his sureties have and recover from Randall & Nephews and Ratto & Co., such sum as they, or either of them, may pay under the judgment rendered against them all, and that they have execution for the same.

It was further adjudged that the sureties of the sheriff, or such of them as might pay the judgment, should have execution against their principal for such sum as any of them might pay on the judgment against all.

The sheriff's official bond was made the basis of the action, but it was not offered in evidence, and the insufficiency of the evidence in this respect is made the basis for an assignment of error which calls in question the sufficiency of the evidence to sustain the judgment rendered.

To avoid the effect of the failure of the appellee to offer in evidence the...