Wright v. Bonta

Roberts, J. The first ground of the motion is based on the rules of the Supreme Court prescribed for the government of District Clerks in the preparation of transcripts. They are directory to the Clerk, and should not be enforced so as to defeat substantial rights, pursued with reasonable diligence. (Mays and another vs. Forbes, 9 Tex. R. 436.) The Clerk •has neglected to insert the filing of any of the papers of the •cause, either in the margin or otherwise ; and has failed to ■comply with those rules referred to in the motion, by which, when properly observed, the Court is more readily enabled to comprehend the record. The second ground of the motion is based on the Statute ; which prescribes that the Clerk “ shall indorse on the copy (the transcript-,) the day on which it is demanded, and the day on which it is delivered, and sign his name as clerk thereto.” (Hart. Dig. Art. 792.) This provision is presumed to be mainly for the benefit of the party demanding the copy, to enable him to show the diligence he has used to forward the transcript to the Supreme Court. The same Section prescribes -the penalty incurred by the Clerk upon a failure to comply with these directions for the perfection of the transcript. So great are the irregularities, and so flagrantly have the rules of the Court and directions of the law been violated, in the attempt to make the transcript in this case, that the Court feel bound to dismiss it, unless immediate measures be adopted by appellant to bring into Court a more perfect record. (A proper transcript having been sent up, Roberts, J., delivered the opinion of the Court on the merits, as follows :) This was an action brought by Bonta, to recover a cow and calf, or their value, before a Justice of the Peace. He recovered a judgment, and Wright brought the case into the District Court by certiorari, when Bonta again recovered, and Wright took an appeal to the Supreme Court. The errors assigned are: [389] 1st. The verdict is contrary to law. 2d. The verdict is contrary to evidence. 3d. The verdict was more than the evidence justified, and was excessive. 4th. The Court erred in excluding the evidence of Wimberly, who was a competent witness. 5th. The Court erred in not granting a new trial. Bonta proved by a witness who was sought, though unsuccessfully, to be impeached, that the cow was his. This was attempted to be rebutted, by showing that Bonta was present when Wright bought the cow of Wimberly, and did not then claim the cow. Bonta obviated this defence, by proving that he did not then know that this Avas the same cow Avhich he had bought of Wimberly. The charge of the Court was most favorable to Wright, and therefore furnishes no ground of exception. At the trial the evidence of Wimberly was offered to be read by Wright to establish his right to the cow, which Bonta objected to, because defendant Wright claimed to have bought the cow in controversy from said witness, which objection was sustained by the Court, to which defendant excepted. The objection here intended to be taken was, that Wimberly was interested in the event of the suit, by having sold the cow to Wright. The controversy was, whether Wimberly had sold the same cow twice, as contended for by Bonta, or had sold two different cows, as contended by Wrightv If he swore that he had sold two different cows, and procured a verdict for Wright, no liability accrued against him ; but if he swore it was one and the same cow sold both times, and procured a verdict for Bonta, he made himself liable at once to Wright, the last purchaser, for having sold him a cow that did not then belong to him. Being interested, therefore, in favor of the side that offered his testimony, it was properly excluded. The remaining ground of error assigned is, that the verdict is excessive, and not justified by the evidence. The proof [390] was, that the cow and increase were worth about twenty dollars, and the jury returned a verdict for twenty-one dollars, which is near enough “ about” twenty dollars, unless attention had been called to so small a matter on motion for mew trial, when any supposed difficulty could, and doubtless would, have been removed by a remittitur. Judgment affirmed.