Wallace v. Howard
| Decision Date | 10 April 1895 |
| Citation | 30 S.W. 711 |
| Parties | WALLACE et al. v. HOWARD et al. |
| Court | Texas Court of Appeals |
Appeal from district court, Montague county; D. E. Barrett, Judge.
Action by W. B. Wallace and others against J. C. Howard and others. Judgment for defendants, and plaintiffs appeal. Reversed.
W. S. Simkins, Templeton & Patton, and Rugely & Walker, for appellants. Sparks & Smith, for appellees.
The question at issue in this case, as in two others heretofore decided by this court, is whether appellants are the true heirs of the William Wallace, first sergeant of Capt. Wyatt's company, who fell with Fannin at Goliad; their contention being that said William Wallace was from Georgia, and not from Virginia, as claimed by the appellees. In rebuttal of this contention, appellees relied in part upon the deposition of one Mary J. Palmer. Over the objections of appellants, on the ground of hearsay, as appears from the bill of exceptions, this witness was permitted, through said deposition, to testify that William Wallace left Virginia to join the Texas army; that he fell in battle in Texas, and that she knew it from reports received from his relations; that he was in Fannin's command; that he did not survive the war, but fell in battle in 1836; that she knew it from hearsay; and that she knew that he went to Texas, because of letters afterwards received from him in Texas by his friends, — the further objection being interposed that she failed to account for the letters, or to state by whom they were received. In explanation of the bill, the court states that from other evidence introduced upon the trial it appears that the nonproduction of the letter referred to by the witness was accounted for. She testified, as appears from the statement of facts, that she knew a family of Wallaces who lived in Rock Bridge county, Va., where she was born, her age, however, not being given; that one member of the Wallace family, named William, went to Texas in early days to engage in the Texas war, and that she got this information from talking with the family; that he fell in battle in Texas, and that she knew this from reports from his relations; that his father's name was Anderson Wallace; that she was a cousin of William Wallace, and their families were on intimate terms; that the Wallace family left Virginia, and that she did not have any connection with them after they left; that she knew that Anderson Wallace was the head of the family from hearsay, he having died before she could remember; that she knew from hearsay that William Wallace fell in battle in Texas in 1836, but knew nothing of the death of the other children of Anderson and Polly Wallace, whose names she gave. She further testified that she knew William Wallace went to Texas, for he said he was going, and bade him good-bye; also "from letters received from him by his family," —but could not state the year he left for Texas; that she knew William Wallace engaged in the command of Fannin, from a letter written by Samuel Wallace to his father. In another deposition she testified that she knew nothing of the fate of William Wallace, nor what account of him had been received among his friends; ...
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