Powell v. Haley

Donley, J. —It is not perceived that the appellant was deprived of making any defense to the action that the Prudhommes, under whom he alleges to claim, could have made. The persons sought to be made parties were nonresidents. It was not error to refuse a continuance of the cause for the purpose of making them parties. The affidavit of the defendant, made on the 19th of June, 1854, was proper evidence to be considered by the jury as an admission of appellant that he did not rely upon the title derived from the Prudhommes, and the objection to the testimony was properly overruled. It is assigned as error, that the court refused to admit the deed from Friar to Brown, and the intermediate deeds from Brown to the Prudhommes. Affidavits were made that the alleged deed from Friar to Brown was a forgery. There was no evidence given to sustain the deed, and it was properly excluded. The deed from Thouvenin to the Prudhommes, and the agreement between the appellant and the Prudhommes, were in evidence, and secured to appellant every right to which he was entitled under the charge of the court and the law, as fully as if the intermediate from Brown to the Prudhommes had been in evidence. It is not perceived, from an inspection of the record, that the court erred in failing to charge the jury as to the effect of titles to a colonist for land outside of a colony for which they were granted. The court having charged the jury as to the law of the case, it was the duty of the appel [56] lant, if he conceived that the law of the case had not been fully given to the jury, to have requested the court to give in charge the law which he conceived to be applicable to the cause, and which had been omitted in the charge of the court. If a proper charge had been asked and refused, it might avail him on appeal. The matter is not so presented in the record as to require an opinion as to whether the charge should have been given, if requested, in the court below. It is believed that the omission of the judge to charge the jury upon the point presented is not such an error as to require the reversal of the cause. The seventh error assigned is, that the court erred in neglecting to swear one of the jury. The affidavit does not show that his counsel was ignorant of the fact that the juror was not sworn, and is insufficient. It is assigned for error that “the court erred in refusing to grant a new trial, upon the grounds alleged in the tuotion for a new trial and the affidavits accompanying the same.” In looking to the motion for a new trial, there are- eight points relied upon as entitling the appellant to a new trial. The assignment of errors in this cause is an imperfect compliance with- the statute requiring errors to be assigned. It is believed that the only question that can arise under this assignment, not disposed of, is that the verdict is not supported by the evidence. The verdict being for the appellees, it must be sustained, unless it appear’ that it was without evidence. It has been settled by repeated decisions of this court that, in a conflict of evidence, the verdict must be sustained, unless it clearly appear to be wrong. (Biscoe v. Bronaugh, 1 Tex., 340; Baldwin v. Gordon, 24 Tex., 288.) It is believed that the evidence is not of such a character as to show the verdict to be clearly wrong. Appellant was notified before he went upon the land that the title under which he proposed settling was doubtful, and it appears [57] that, in 1854, he did not rely.upon the title of the Prudhommes. He makes an affidavit, on the 19th of June, 1854, that he believes he is settled upon public land. The record, it is thought, does not present a case requiring the court to set aside the verdict. Whatever is sufficient to put a party upon inquiry is notice. (1 Story’s Eq., § 400, 401.) The judgment is affirmed.