O'Shea v. Twohig

Citation9 Tex. 336
PartiesO'SHEA AND OTHERS v. TWOHIG.
Decision Date01 January 1852
CourtSupreme Court of Texas
OPINION TEXT STARTS HERE

All that a reasonable construction of the statute (Hart. Dig., art. 817) requires, in order to authorize the introduction of a deposition taken de bene esse, is a reasonable presumption that the witness is beyond the limits of the county. It is not necessary that there should be an affidavit stating the fact absolutely.

Acts of the Legislature which create new counties do no more than to provide for their organization; and until the new county is actually organized the territory remains subject to the jurisdiction of the old county; and the circumstances of the inclusion of the new county by name in another judicial district, and in an act apportioning Senators and Representatives among the several counties of the State, do not affect the question. (Note 55.)

It is our practice to join all who are supposed to be liable, although their liabilities may have accrued in different ways; and if the evidence should not fix the liability of one or more so joined, such defendant would be entitled to a verdict in his favor. And this practice prevails in actions ex delicto, where the subject matter of the suit is one.

Where the plaintiff sued for specific property, alleging its value to be fifteen hundred dollars and the damages for its detention to be three thousand dollars, and prayed for the specific property and damages for its detention, without a general prayer: Held, That it was not necessary, in order to sustain the action, to prove that the property was in the possession of the defendants at the date of the suit. And the verdict and judgment having been in favor of the plaintiff for the value of the property: Held, There was no error.

See this case for what is said respecting analogies to the actions of detinue and trover.

Where an assistant quartermaster of the United States army received wood from a contractor, under a contract made in the usual way after publication for proposals, and paid over the price after he had been notified by the owner of the land from which the wood was tortiously taken not to do so, it was held that the officer was liable to the owner of the land for the value of the wood.

Appeal from Bexar. Suit by John Twohig against F. B. O'Shea, John Rich, B. Callaghan, F. Gilbeau, and J. B. Plummer, for entering upon the premises of the petitioner in said county, and cutting and carrying away, without plaintiff's permission, five hundred cords of wood, of the value of fifteen hundred dollars, which they had in possession and detained from said plaintiff, refusing to deliver it to him, although requested, which refusal to deliver and detention of said wood by said defendants was to the manifest injury of the petitioner and to his damage three thousand dollars; wherefore the plaintiff prayed process, that the court would decree him possession of the wood specifically and damages for the unlawful detention of the same.

Gilbeau demurred, because the allegation of a trespass did not set forth the metes and boundaries nor specifically describe any tract of land on which the trespass was committed, without which defendant could not defend; further, defendant denied all and singular, &c., and said he had no wood of the plaintiff's in his possession, &c.

O'Shea and Rich alleged that they did not reside in the county of Bexar, and were not legally served with process; but did not state where they did reside. They also answered same as Gilbeau.

Callaghan alleged that he was not legally cited, because he was not in the county of Bexar, and the sheriff of Bexar had no authority to cite him; and further answered same as Gilbeau.

Plummer answered same as Gilbeau, and further that “whatever wood he has in his possession or control he holds as the agent of the United States Government, being an assistant quartermaster of the United States army, and as such he is not liable to be sued in the ordinary tribunals of the country;” that he was not an inhabitant of Bexar county, but resided in Kinney county.

The pleas to the jurisdiction coming on to be heard, it was admitted that the defendants, O'Shea, Rich, and Plummer, were all living in the district of country defined and declared by the Legislature of this State in 1850 as Kinney county; and that they and defendant Callaghan were in said county when process was served on them by the sheriff of Bexar county; and that the wood sought to be recovered and the land from which it was taken were within the limits of Kinney county, which was originally a part of Bexar county, and had never been organized. The court decided that the jurisdiction of Bexar county extended over the country until the county of Kinney should be organized, and therefore overruled the pleas.

The proof was that O'Shea and Rich were engaged in business at Eagle Pass, in partnership with Gilbeau and Callaghan, who were engaged in business at San Antonio; that O'Shea and Rich took a contract to furnish the United States quartermaster's department at Fort Duncan, near Eagle Pass, six hundred cords of wood at $4 50 per cord; that they cut the wood, say 500 cords of it, off the land of Twohig, the plaintiff, and delivered it to Plummer, the assistant quartermaster at that place; that Plummer had notice from Twohig, before the wood was all delivered and before any of the price was paid over to O'Shea and Rich, that the wood belonged to him, Twohig; that O'Shea and Rich professed to be the agents of Twohig, but their agency was not proved; that the timber left standing on Twohig's land, where the wood was obtained, was very much injured by the careless and extravagant manner in which the wood was cut.

The deposition of George Craig, offered by plaintiff, was objected to on the ground that he resided in Bexar, and there was no affidavit that he was at the time out of the county; it was proved that he had left for El Paso about twenty-five days before; that the road passed through Medina county; that, although 350 miles distant, he might yet be in Bexar county. The court overruled the objection, and defendants excepted. Verdict for 500 cords of wood at $3 per cord, and judgment accordingly. Motion for new trial.

I. A. & G. W. Paschal, for appellants.

H. P. Brewster, for appellee.

LIPSCOMB, J.

The first point presented for our consideration by the appellant's brief, is the admissibility of the testimony of a witness taken by interrogatories, whose residence was said to be in Bexar county, but who had left for El Paso. It is contended that his testimony being only de bene esse, it should not have been received without affidavit that the witness was without the limits of the county at the time it was offered in evidence. The objection is predicated upon the proviso to article 817, Hart. Dig. It is in the following words: “Provided, that no deposition of a witness, except when the witness is a female, shall be permitted to be read in evidence, unless the party offering the same, his agent, attorney, or some competent person, shall first make oath that the witness is without the limits of the county where the suit is pending, or that such witness is dead, or that, by reason of...

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12 cases
  • Nelson v. Krusen, C-1429
    • United States
    • Supreme Court of Texas
    • October 17, 1984
    ...where there were no tribunals to provide a remedy by due course of law. Id. at 294; accord Clark v. Goss, 12 Tex. 395 (1854); O'Shea v. Twohig, 9 Tex. 336 (1852). In Dillingham v. Putnam, 109 Tex. 1, 14 S.W. 303 (1890), this court stated, "A law which practically takes away from either part......
  • LeCroy v. Hanlon, C-4745
    • United States
    • Supreme Court of Texas
    • July 2, 1986
    ...Apparently, the open courts provision was uncontroversial. This court first enforced the open courts provision in 1852 in O'Shea v. Twohig, 9 Tex. 336, 341-42 (1852). The court followed with three other cases before the 1875 Constitutional Convention. Teas v. Robinson, 11 Tex. 774 (1854); C......
  • Brazell v. Irene Independent School Dist.
    • United States
    • Court of Appeals of Texas
    • July 6, 1925
    ...against all parties liable for the payment of the same, or any part thereof, though such liability accrued in different ways. O'Shea v. Twohig, 9 Tex. 336, 342; Floyd v. Patterson, 72 Tex. 202, 207, 10 S. W. 526, 13 Am. St. Rep. 787; Mathonican v. Scott & Baldwin, 87 Tex. 398, 400, 28 S. W.......
  • Stark v. Harris
    • United States
    • Court of Appeals of Texas
    • November 27, 1907
    ...that the placing of the unorganized county in a different judicial district did not sever its connection with the parent county. O'Shea v. Twohig, 9 Tex. 336; Clark v. Goss, 12 Tex. 395, 62 Am. Dec. 531. In the first case cited the Supreme Court was considering the status of Kinney county, ......
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