Testard v. Butler

• Decision Date: 07 December 1898
• Citation: 48 S.W. 753
• Parties: TESTARD et al. v. BUTLER.
• Court: Texas Court of Appeals

48 S.W. 753

TESTARD et al. v. BUTLER.

Court of Civil Appeals of Texas.

December 7, 1898.

Appeal from district court, Mason county; W. M. Allison, Judge.

Suit by Mrs. M. L. Butler against Seth Testard and others. Judgment for plaintiff, and defendants appeal. Reversed.

C. L. Bass and Leigh Burleson, for appellants. J. T. Stapleton and Walter Anderson, for appellee.

NEILL, J.

This suit was brought by the appellee against appellants to cancel a certain deed made by her to appellant Christine Simmang, upon the ground that said deed was procured from her by false and fraudulent representations. Upon the trial of the cause before a jury, a judgment was rendered in her favor, canceling said deed, and from the judgment this appeal is prosecuted.

A motion was made by appellants to exclude the depositions of certain witnesses whose testimony was material to establish plaintiff's cause of action, upon the ground that the notary public who took said depositions was her attorney in this case. The overruling of the motion by the trial court is assigned as error. It appears from the bill of exceptions taken to the court's ruling that the attorneys who instituted and represented the plaintiff in this suit wrote a letter to an attorney in San Antonio, Tex., acquainting him with the nature of this case, and informing such attorney that they wanted to prove certain facts,—telling him what the facts were,—and requested the attorney to find parties by whom such facts could be proven, and to send them the names of such parties. The attorney, in obedience to the request of plaintiff's attorneys, found the witnesses by whom the desired facts could be proven, and furnished plaintiff's counsel with their names, and from them received $25 for his services in so doing, which money was furnished by the appellee. Interrogatories were then propounded by plaintiff's counsel to prove the desired facts by the witnesses whose names were so furnished, and, upon the interrogatories, commissions were issued to take their testimony, and sent by plaintiff's counsel to the attorney (he being a notary public) who had found said witnesses; and the depositions of the witnesses were taken, before said attorney and notary public, to said interrogatories, and returned by him to the district court of Mason county. As is said by the supreme court in Blum v. Jones, 86 Tex. 495, 25 S. W. 694: "Our statutes do not prescribe any qualifications for commissioners to take depositions, further than...