Brandon v. McNelly

Moore, Associate Justice. It has been repeatedly de- cided by this court that a party is not entitled, if objection is made to its introduction, to use a deposition taken and filed by his adversary when he has failed to propound cross interrogatories to the witness, (Norvell v. Oury, 13 Tex., 31; Harris v. Leavitt, 16 Tex., 340; Town of Refugio v. Byrne, 25 Tex., 193.) The fact of a deposition of another witness taken by the same officer, on interrogatories propounded in common to two witnesses, having been read by the party at whose in [78] stance it was taken, does not vary the rule, though, for convenience and economy, one set of interrogatories may be propounded jointly to all the witnesses on the points to which their testimony is,applicable; and for like reasons the depositions of all of them may be returned into court by the officer by whom they are taken under cover of a single envelope; still, when offered in evidence, it is the separate deposition of each witness whose testimony is proposed to be read to the jury, and not the common deposition of all whose answers have been taken and returned by the commissioner, upon which the court is called to pass. The right of the party taking such depositions to have the evidence go to the jury depends upon the competency and admissibility of the testimony of each individual witness when offered; so the right of the other party to use the deposition of the particular witness whose evidence he may desire to submit to the jury depends upon the fact that he has taken the necessary steps to secure such interest in it as gives him this right. The court did not err in refusing the charges asked by appellant. There is certainly no presumption of law that the grantee of a certificate for six hundred and forty acres of land by a board of land commissioners, at the date of the alleged grant to the ancestor of appellee, Mrs. McNelly, left a wife surviving him at his death; nor did the evidence before the court, or matters alleged by appellees in their petition, warrant the assumption of facts or conclusions of law contained in the instructions asked. The proof of the death of the patentee, and that Mrs. McbTelly was his sole surviving heir, was unquestionably sufficient to establish her prima fade right to a judgment for the entire land, as against a mere naked trespasser. There is no error in the judgment, and it is affirmed. Affirmed.