Schunior v. Russell

• Decision Date: 22 January 1892
• Citation: 18 S.W. 484
• Parties: SCHUNIOR <I>et al.</I> v. RUSSELL.
• Court: Texas Supreme Court

18 S.W. 484

SCHUNIOR et al. v. RUSSELL.

Supreme Court of Texas.

January 22, 1892.

Appeal from district court, Nueces county.

Trespass to try title by John C. Russell against Charles Schunior and others. From a judgment for plaintiff, defendants appeal. Reversed.

Nicholson & Dodd, for appellants. Wells, Stayton & Kleberg, for appellee.

GAINES, J.

This was an action of trespass to try title brought by the appellee against the appellants. The plaintiff claimed the survey known as "El Perdido," and the defendants that known as "La Blanca," and the controversy seems to have grown out of a dispute as to the true location of the dividing line between the two surveys. These lands were granted in 1835, La Blanca to Gilzarate y Bayerend, and El Perdido to Pedro Garcia. In order to facilitate the trial, it was agreed between the parties that the defendants had title to the La Blanca tract, and that the plaintiff had title to the El Perdido, unless a certain deed through which he claimed was forged, and that, except as to the forged deed, the sole issue in the case was as to the true location of the dividing line between the two surveys.

Before entering upon the trial, the defendants made a motion, based upon several grounds, to suppress the depositions of four witnesses, which had been taken in behalf of the plaintiff. The motion was overruled, and that ruling is assigned as error. The first ground of the motion is that one commission was issued to take the depositions, not only of the four witnesses above referred to, but also of several others, and that the return of the officer who executed the commission failed to show why the depositions of the latter were not taken. It is insisted that because the officer only partially executed the commission, and failed to show any reason for not executing it in full, what was done by him was not in accordance with his commission and the law, and should therefore be overruled by the court. We see no good reason to maintain this contention. It may have some support in extreme technicality, but has none in sound principles of procedure. Why should a plaintiff who has filed interrogatories to two or more witnesses, and who has taken out a commission to take their depositions, be compelled to take all of them, if for any reason he desires not to do so? It seems to us he might as well be required to place upon the stand every witness he has summoned to attend the trial. When he has taken the testimony of one or more of the persons named in the commission, and deems that sufficient, or has ascertained that the others know nothing material to the case, is he bound to make the extra labor and expense of doing a futile thing? We think not. It may be that when a defendant has filed cross-interrogatories, and especially where his interrogatories are such as to make the witness his own, he may have such an interest in the commission as would entitle him to have the depositions taken on his own behalf, and that the failure of the officer to execute the commission as to all the witnesses might give him the right to ask for time to procure their testimony, but it would not entitle him to have the depositions taken by his adversary suppressed.

The depositions in this case sought to be suppressed were taken in the city of Camargo by an officer who gave his official title as "consular agent of the United States at Camargo, Mexico." In authentication of his act, he used a seal which contained the words "United States Commercial Agency." It is claimed that the seal of the United States commercial agency is not the seal of this officer. Section 1674 of the Revised Statutes of the United States contains this language: "First, `consul general,' `consul,' and `commercial agent' shall be deemed to denote full principal and permanent consular officers, as distinguished from subordinates and substitutes; second, `deputy-consul' and `consular agent' shall be deemed to denote consular officers subordinate to their principals, exercising the powers and performing the duties within the limits of their consulates or commercial agencies, respectively, the former at the same ports or places, and the latter at ports or places different from those at which such principals are located, respectively; third, `vice-consuls' and `vice commercial agents' shall be deemed to denote consular officers who shall be substituted temporarily to fill the places of consuls general, consuls, or commercial agents, when they shall be temporarily absent or relieved from duty; fourth, `consular officer' shall be deemed to include consuls general, consuls, commercial agents, vice-consuls, vice commercial agents, and none others." A "consul" is defined to be "a commercial agent of a country residing in a foreign seaport, whose duty it is to support commercial intercourse of the state, and especially of the individual citizens." 3 Amer. & Eng. Enc. Law, 764. From this definition, as well as the language of the statute, we deduce these conclusions: That a "consul" and a "commercial agent" are invested with the same powers and duties; that, though nominally different, the office of each is substantially the same as that of the others; and that the name is determined by the relative importance of the port to which the officer is assigned. It is to be noted that the second subdivision of the section of the Revised Statutes of the United States hereinbefore quoted provides that deputy-consuls are subordinates who perform their duties at the same port as the principal; and that consular agents are, in effect, deputies who act at a place other than that at which their principals are located. In the first subdivision, commercial agents are declared to be principal officers, and it is thereby indicated that they might have deputies. It would seem that, if a commercial agent should be placed in charge of a number of ports or places, a deputy might be necessary at places where he could not discharge the duties of the office in person. But the Revised Statutes do not expressly mention a deputy commercial agent or the agent of that officer. The agent of a commercial agent, by being called a "commercial agent," would not have been distinguished from his principal; and we therefore incline to the opinion that it was intended that such a deputy, when acting at a place different from that of his principal, was intended to be known as a "consular agent." He is such in fact, and it is no misnomer. It is evident from the certificate to the depositions in this case that the officer was an agent in a commercial agency, and we infer that, under the official title of consular agent, he was acting as deputy of the commercial agent of a consular district. The seal of the United States commercial agency would indicate that such agency existed at Camargo, and it would seem that a consular agent at that point must have been subordinate to the commercial agent in charge of the district in which Camargo was situate. But, at all events, it is to be presumed that the officer who took the depositions did his duty, and affixed the proper seal in authentication of his acts; and from the light before us we cannot say that the seeming discrepancy between the seal and the title of the officer is sufficient to overcome that presumption. On the contrary, without the aid of the presumption, we incline to the opinion that we should be constrained to hold that the seal was a proper one.

But another ground upon which the motion to suppress was based, is that an attorney of the plaintiff acted as interpreter in taking the depositions. The facts in relation to that matter are that one H. F. Hord was employed by the plaintiff to attend the taking of the depositions, and to see that they were taken according to law. He was present when the depositions were taken. The witnesses spoke Spanish, and did not understand the English language. Hord understood both languages. The officer also understood the English and Spanish languages well, but, because he did not write the former with facility, he requested Hord to take down the answers of the witnesses. Hord translated the answers, and wrote them down. The officer compared Hord's work, which was done in his presence and hearing, and, after the answers were written down, assured the witnesses that they were correctly translated. It was admitted that Hord "made the interpretations correctly," and that he was not sworn. Our statutes give the officer authority to summon and swear an interpreter. Rev. St. art. 2230. When the witnesses do not understand the English language, and the officer does not understand both that language and that of the witnesses, he should undoubtedly secure an interpreter, and swear him, as the statute provides that interpreters shall be sworn. But if the officer be familiar with both languages, and merely make use of an interpreter in taking the depositions, supervising the work himself, and seeing that it is correct, we see no reason for requiring that the oath shall be administered to such an interpreter. It is the officer's work at last, and it is to be presumed that he has done his duty, and has seen that his assistant has interpreted correctly. The fact that Hord was the attorney of the plaintiff presents a question of more difficulty. We think it improper for the officer to permit the attorney of a party to write out the deposition of the witness in any case, and in this case, the attorney having acted both as an interpreter and an amanuensis, the irregularity is more pronounced. If that had been all that had been shown with reference to the matter, the depositions should have been suppressed. But the statute does not expressly prohibit the action that was taken in this case, and therefore it cannot be said that the depositions are void. It is a gross irregularity, for which depositions, as a rule, should be avoided. But it here appears that the officer, knowing both languages, was present...