Thos. H. Garner's Adm'r v. Daniel M. Cutler's Adm'r.

• Decision Date: 31 October 1866
• Parties: THOS. H. GARNER'S ADM'R v. DANIEL M. CUTLER'S ADM'R.
• Court: Texas Supreme Court

28 Tex. 175

THOS. H. GARNER'S ADM'R

v.DANIEL M. CUTLER'S ADM'R.

Supreme Court of Texas.

October, 1866.

Objections to the admission of evidence are not available in this court unless they were made in the court below. 11 Tex. 391;ante, 83.

A levy upon personal property is, as a general rule, held to be prima facie evidence of satisfaction of the execution. But this presumption does not arise when possession of the property remained with the defendant in execution; and it is repelled whenever it is shown that the plaintiff has been prevented, either by the act of defendant or the operation of law, from reaping the fruits of his levy. Pas. Dig. note 867, p. 620.

When two or more executions against a defendant come to the hands of a sheriff, he is required by law to number them in their order of precedence; and, in accordance with such orders, they are entitled to satisfaction out of the property of the defendant. In such case, it is of no importance under which execution a levy and sale are made; the first execution is entitled to the first satisfaction, although the levy and sale be made under a subsequent execution. Pas. Dig. art. 3780, note 871.

If all the executions be levied on the defendant's property, the sheriff, for the sake of greater accuracy, should show by his returns upon the subsequent executions that the levies made under them are subject to the priority of those having precedence of them; but a failure of the sheriff to make such showing could not affect the respective rights of the several plaintiffs in execution.

A sheriff's return of an execution is to be regarded as true and correct until the contrary is made to appear. Pas. Dig. art. 3773, note 866.

The plaintiff sued upon a judgment, and, in support of his action, introduced as evidence a transcript of the judgment and subsequent proceedings, including an execution issued on the judgment, which was received by the sheriff as execution No. 2, and upon which he indorsed a levy upon real and personal property of the defendant in execution. By a subsequent indorsement the sheriff returned the execution not satisfied, stating in this return that the property levied upon had been sold under execution No. 1, in his hands, in favor of another party, and which exhausted the property. This being all the evidence with respect to the levy, sale, and application of the proceeds, it is held, that it was sufficient to prove that the judgment sued on neither was nor should have been satisfied by the levy or its proceeds.

The taking of testimony by depositions being a departure from the common law rules of evidence, the statutory provisions permitting and regulating it must be fully and fairly, if not strictly, complied with; and, if this be not done, such testimony should be excluded.

The statute which provides for taking depositions requires the party to file interrogatories in the court where the suit is pending, and to cause the opposite party, or attorney, to be served with a copy thereof, and also with a notice that he will apply for a commission, etc. Pas. Dig. art. 3726, note 845. This requirement was intended to secure valuable and important rights to the party in whose behalf it is provided.

If, in the notice for the taking of a deposition, the name and residence of the witness have not been truly given, the deposition is not taken in conformity with the statute, and should be excluded on objection properly interposed.

If the deposition have been on file for one day before the trial, the objection should be made in writing, and with notice to the party; and where the objection was sustained by the court below to a deposition so on file, this court will presume that it was made in that manner, unless the contrary appear by the bill of exceptions. Pas. Dig. art. 3742, note 851.

In this case depositions were objected to on the ground that the witnesses were not in fact residents of the counties specified in the notice. The party offering the depositions insisted, in the court below, that the question of fact thus raised, and the evidence pertinent to it, should be submitted to the jury along with the depositions themselves and the main issue in the cause. But the court below ruled that the question of fact involved in the objection was to be determined by the court, and, accordingly, the proof upon the question was heard by the court, who thereupon sustained the objection, and excluded the depositions from the jury: Held, that the statute does not direct the mode in which the question of fact raised by such an objection is to be tried; that, on principle and authority, the objection, being preliminary to the introduction of the depositions and going to their competency and admissibility, was determinable by the court and not the jury, notwithstanding the question of fact involved by its decision. And the proof, though conflicting and contradictory, being sufficient to justify the decision made by the court below, this court will not attempt to determine on which side it preponderated, but sustains both the practice and the ruling of the court below in excluding the depositions.

Evidence tending to show that the persons whose depositions were introduced had been fraudulently personated, or that, in fact, there were no such persons as the pretended witnesses, would, after the depositions had been admitted, be competent evidence to go to the jury. But evidence that there were no such persons as the pretended witnesses would be also competent before the court upon the preliminary question of the admissibility of the depositions, for such evidence would necessarily show that there were no such residents of the particular county where the depositions were taken.

If there has been error in the ruling of the court below, it is the duty of the appellant to put his finger upon it. He must present the facts so as to make the error of which he complains manifest. He cannot expect the court to seek for or to find it by argument or deduction. Pas. Dig. art. 1591, note 618.

If the notice of objections to the form or manner of the taking a deposition were not in writing, as required by the 78th section of the act to regulate proceedings in the district court, but only offered ore tenus, when the deposition was presented, the want of such notice should be shown by bill of exceptions. Pas. Dig. art. 3742, note 851; art. 217, note 280.

APPEAL from Leon. The case was tried before Hon. JOHN GREGG, one of the district judges. The facts appear in the opinion of the court.

Hancock & West, for the appellant. Under art. 461, O. & W. Dig., objections of this character (that is, to the residence) go only to the form and manner, and should be in writing. In Hagerty v. Scott, 10 Tex. 525, the same objection was made, and in the same manner, and the court held, that it was to the manner and form, and should have been in writing, and they go on to use the following language: “We cannot believe it to be very material where the residence of the witnesses may be, further than to inform the opposite side of his identity.” The case of Craft v. Rains, 10 Tex. 520, is also in point.

The case of Bracken v. Neill, 15 Tex. 109, where the witness was said to reside in one county and his evidence was taken in another, the court held, it only went to the manner and form, and could not be taken wholly on the trial. 11 Tex. 656, as illustrating the same rule. Scott v. Delk, 14 Tex. 344, goes to a still greater length. Under these decisions it is clear that the objection was not taken in the proper manner.

There is a written notice in the transcript of objections to depositions on this ground, but it was not taken to these depositions, but certain depositions (not in the record) that appear to have been taken in Hill county. That objection was filed on 16th November, 1858; hence the only objections to these depositions were oral, as appears from the bill of exceptions. If, however, the court did have the right to pass upon it at all in that form, we hold that he decided erroneously, for the weight of evidence (pointed in its character) was with appellant, and all appellee's evidence was only negative in its character.

If the evidence as to residence was admissible in any view, it could only have been for the purpose of showing that the witnesses were fictitious persons, or assuming false names, and were perjured. This, however, would have been a question for the jury to determine when the evidence was before them, and they were the proper judges of that, and not the court. If a fraud had been charged on the appellant and the officer taking the deposition to forge and manufacture evidence, it might possibly have been a question for the court. But there is no pretense that they were fictitious persons, or that the officer did not honestly take them; they only seek to prove that they do not reside in Johnson county.

W. D. Wood and R. J. Gould, for the appellee. There is but one point presented by the various assignments of error, and that is the action of the court in excluding the depositions of Roberts, Smith, and Brown. The appellant, in his bills of exception and assignments of error, seems to hold that the jury should have passed on the admissibility of these depositions. It is always for the court to say whether there is any testimony or not. 1 Greenl. Ev. § 49.

The substantial objection to the testimony of these witnesses was not merely as to their place of residence, but whether their whole testimony was not a fabrication and a fraud. This is an objection novel in its character, and we have not found any method prescribed in the books by which it shall be made. It is believed, however, to be an inherent power in courts of justice to prevent the perpetration in open court of a barefaced fraud. A court is said to be a place where justice is judicially administered. To allow fabricated testimony to go to the jury simply because the formalities of the law have been...