Wilson v. Adams
| Citation | 15 Tex. 323 |
| Parties | JOHN S. WILSON v. JOHN ADAMS. |
| Decision Date | 01 January 1855 |
| Court | Supreme Court of Texas |
A plea stating facts to show that the suit is not commenced in the proper county must be supported by affidavit, unless the truth thereof appears of record.
Affidavit must be made to the truth of a plea in abatement (not to the jurisdiction of the court), not to the best of the knowledge and belief of the affiant, but to his actual knowledge of the facts.
Error in the admission of evidence, as to one of several causes of action alleged in the petition, may be cured by a remittitur of an amount sufficient to cover that cause of action, as alleged; the cause of action in this case was for a sum certain, and not for unliquidated damages.
Where the judge has charged the jury of his own motion, in order to reverse for error in refusing additional charges asked, it must appear that they were not already substantially given, and that they should have been given.
It seems that if an overseer contract to stay a whole year or lose the time actually served, the contract will be literally enforced.
Where suit is brought in one county and the defendant is alleged to reside in another, although it seems to be proper and perhaps necessary to allege facts which show that the defendant was not entitled to have the suit commenced in the county of his residence, yet if not successfully met by plea in abatement, it is not necessary to prove such facts under the general issue.
Appeal from Brazos.
A. M. Lewis, for appellant.
Jennings & Moore and F. L. Barziza, for appellee.
The first assignment noticed by the appellant in argument is, the alleged error in sustaining the plaintiff's exceptions to the plea in abatement. The plantation on which the plaintiff was employed as overseer is in the county of Brazos, and in the petition it was alleged that the contract was to be performed in that county. The plea states that the defendant is a resident of the county of Harrison, and that he did not contract to pay the plaintiff in the county of Brazos. This plea was filed on the 27th April, 1854, and the defendant made oath to its truth to the best of his knowledge and belief. The plaintiff's motion to strike out the plea on the ground that it was not supported by a sufficient affidavit was sustained. The verdict found for plaintiff at the spring term, 1854, was set aside. At the second trial, at the spring term, 1855, the plea was refiled and exceptions to it were again sustained.
The plea on its last filing was subject not only to the original objection of the insufficiency of the oath, but also of its being too late, issues having been formed on pleas to the merits.
The plea, so far as it averred the residence of the defendant, did not require the aid of an affidavit, the fact of the residence having been alleged and admitted in the petition; but the part as to the place of performance should have been sustained by oath, denying positively the obligation to perform his part of the contract in Brazos county. Affidavit must be made to the truth of the plea in abatement, not to the best of the knowledge and belief of the affiant, but to his actual knowledge of the facts. The form of the oath as found in Chitty, vol. 3, p. 806, is that the “plea is true in substance and in facts.” The defendant must have known whether his agreement was, either expressly or by implication, that the money was to be paid at the place where the services were to be rendered. The presumption that such was the place would be strong, and it should have been negatived in distinct and positive terms.
We are of opinion that there was no error in the ruling as to the plea.
The third assignment as to ruling out portions of the testimony of Thomas D. Wilson is not sustained by the record.
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