Winn v. Winn

• Decision Date: 30 May 1900
• Citation: 57 S.W. 80
• Parties: WINN v. WINN.
• Court: Texas Court of Appeals

57 S.W. 80

WINN v. WINN.

Court of Civil Appeals of Texas.

May 30, 1900.

Appeal from Leon county court; H. B. Pruitt, Judge.

Action by Mrs. Sarah Winn against Buck Winn to recover the proceeds of the sale of a homestead. From a judgment for defendant, plaintiff appeals. Reversed.

This is an appeal by Mrs. Sarah Winn against Buck Winn from the county court of Leon county. No brief for appellee has reached us. Mrs. Winn, the appellant, sued Buck Winn to recover $400 and interest, proceeds of the sale of homestead of plaintiff and her deceased husband, alleged to have been converted by defendant on the 4th day of January, 1897. Defendant answered first to the jurisdiction, averring that the amount in suit was cognizable in justice's court, and that the averment of the amount sued for was fraudulently made to confer jurisdiction on the county court. Defendant also answered by general denial. There was a verdict and judgment for defendant, from which the plaintiff has appealed.

Dean & Dean and James T. Ryan, for appellant.

FISHER, J.

Unquestionably, the court below erred in permitting defendant's counsel to prove by the witness Robert Winn that plaintiff, Sarah Winn, had told him she had stolen $20 from Tobe Winn. She had testified that she had not stolen the money, and denied that she had so stated. The testimony was not admissible to impeach her, nor to degrade her character before the jury. The court qualifies the bill of exception as follows: "Counsel for defendant had asked plaintiff on cross-examination if the reason why she had left Tobe Winn's was not the fact that she had stolen $20 from him, to which question plaintiff answered `No.' Counsel for defendant then asked her if it was not a fact that she had stolen $20 from Tobe Winn, and had confessed the theft to Robert Winn, to which question plaintiff's counsel objected, but admitted that defendant could prove the fact of the theft by Robert Winn for the purpose of discrediting her testimony; and with this understanding the court sustained the objection, and afterwards admitted the testimony of Robert Winn for the purpose of discrediting the testimony of plaintiff." It is elementary, and does not require discussion or authority, that the plaintiff, as a witness, could not be impeached in the manner stated, nor could she be degraded by the testimony admitted; there being no issue in the case of the kind suggested. If plaintiff's counsel had admitted that such proof could be made by Robert...