Bush v. Barron

HOBBY, Judge. The appellee Solomon Barron brought this suit against W. W. Bush to recover a certain jack claimed by plaintiff, and alleged to have been taken and converted by defendant on December 1, 1886. The suit was instituted in May, 1887. The value of the jack was alleged to be 8525, and damages for his use were laid at 8500. The defendant pleaded a general denial, statute of limitations of two years, and title in himself. A trial before the jury resulted in a verdict for the plaintiff for the sum of 8300, the value of the animal, and 8150 damages. This judgment is appealed from. The first error assigned is the action of the court in overruling defendant’s motion to suppress the depositions of plaintiff’s witnesses Joe Barron and Neil Morrison, for the reasons stated in bills of exception Nos. 1 and 2. The objections to the depositions were that they-were not taken before an officer authorized by law to take the same; that the certificate of the officer fails to give the name and official character of said officer, and does not state that the answers to the interrogatories and cross-interrogatories were made and signed and sworn to before said officer by the witness Joe Barron. The officer’s certificate.is as follows: “Sworn to and subscribed before me this August 25, A. D. 1887. John H. Smith, justice of the peace, Ellis County, Texas.” The receipt of the postmaster recites that he received the depositions from “ J. H. Smith, J. P., Ellis Co.,” etc. Subdivision 1 of article 2226 of the Revised Statutes provides in substance that the commission to take the answers of a witness residing in the State, when his evidence may be desired in the form of depositions, shall be executed, etc., by “ any clerk of the District Court, judge or clerk of the County Court, or any notary public of the proper county.” It does not authorize a justice of the peace, unless it does by reason of the fact that he is under our law ex officio a notary public. In the present case it might be admitted that the certificate sufficiently shows the officer to be an ex officio notary public, and still the assignment of error is well taken and the motion to suppress the deposition should have prevailed. The officer’s certificate, we think, failed to show, as the statute required it should, that the answers to the interrogatories and cross-interrogatories were signed by the witness before him. It is essential that the certificate should show this; or if it does not appear therefrom alone, the caption may be resorted to to aid in this respect the certificate, and if from both it satisfactorily appears it will be sufficient. In this case the caption is [9] simply as follows: “Answers to interrogatories propounded by plaintiff to Joe Barron, a resident of Ellis County, Texas.” This does not, when read in connection with the certificate, show that the answers were signed by the witness before the officer. The motion to suppress the depositions of the witness Joe Barron we think should have been sustained. Chapman v. Allen, 15 Texas, 282; Thompson v. Haile, 12 Texas, 139; Slaughter v. Rivenbark, 35 Texas, 69. The grounds of objection to the deposition of the witness Heil Morrison were that he had failed and refused to answer defendant’s cross-interrogatory Ho. 1 in this, that he failed to state “ when and where the conversation about the subject matter occurred between him and Thomas Barron.” The witness was asked, in substance, “if he related any conversation had, etc., between Thomas Barron and any one else in relation to the jack, state when and Avhere you heard it,” etc. The answer was, “I don’t remember any one being present; our conversation was of a private nature.” This witness had stated in answer to the direct interrogatory that “ Thomas Barron, at his house in Ellis County, in 1880, had told him when taking the jack to appellee’s ranch in Fisher County that he had bought it for appellee at. his direction and with his money.” This we think fully answered the question of appellant as to when and where the conversation occurred. It is true that the answer to the cross-interrogatory is not responsive. But the answer to the direct interrogatory does contain the information as to the time and place of the conversation referred to, and no more than this could have been attained had the answer to the cross-interrogatory contained the same information. The second assignment is that the court erred in allowing the plaintiff Solomon Barron to testify to conversations had with the deceased and statements made by the latter with reference to the title to the jack, the said Thomas Barron having since died. There was no error in admitting this evidence. Solomon Barron, the appellee, was not claiming the animal as the heir of Thomas Barron, deceased, or under him. Ho judgment could have been rendered against him or for him as such heir. He was claiming in his own right and denying that Thomas Barron or any other person had any title adverse to him. Article 2248 of the Revised Statutes has no application to his testimony. The appellant’s next assignment is, in substance, that there Avas error in admitting the testimony of the Avitnesses Joe Barron, Heil Morrison, and Hamp Collett as to the declarations of Thomas Barron to the effect that he had purchased the animal with his father’s (appellee’s) money and under his directions for him. The objection urged to this evidence was that Thomas Barron was appellant’s vendor. There was no evidence of any title or claim to the property in controversy from Thomas Barron to [10] appellant. The statements testified to by the witnesses named were made during Barron’s lifetime and before appellant set up any claim. Appellant’s claim was under an alleged sale by Barron’s administrator. The objection to the evidence, we think, was properly overruled. Neither do we think there was error in excluding the order of sale, report, and confirmation thereof by the Probate Court of Nolan County, and the bill of sale from the administratrix of the estate of Thomas Barron to appellant conveying the remainder of the stock of horses of said estate. It was not pretended that the jack in controvery was embraced in this bill of sale or that this animal constituted any part of the estate of Thomas Barron. It seems to have been admitted that the inventory of the estate showed of this character of property only “three Spanish jacks and one jenny,” and that prior to this sale no jacks had been sold by the estate. The evidence was immaterial and irrelevant. The charge of the court that the “ recorded brand and mark of Solomon Barron was evidence proper to consider in connection with all the facts,” etc., is objected to. We think there was no error in giving this charge. The appellant complains that the court refused to give a special charge to the jury to the effect that if appellant or those under whom he claimed, etc., had had two years adverse, etc., possession of the jack prior to this suit, they would find for him. The court did instruct the jury as above indicated, omitting the language “or those under whom he claims.” This, we are of opinion, was in accord with the facts proved. There was no evidence of any adverse possession of the animal by Thomas Barron or his estate or any one under whom defendant claimed, and it would have been error to charge upon the theory of such possession. The assignment to the effect that the verdict is contrary to and not supported by the testimony is untenable. The verdict is supported by the proof in the case. But we are not able to say to what extent this verdict was influenced by the testimony of the witnesses erroneously admitted. The deposition of the witness Joe Barron was upon a vital issue—the ownership of the property. That testimony was emphatic as to the declarations of Thomas Barron, deceased, that the property belonged to appellee; that he purchased it for him at his request and with his money. As this testimony, although there was other to the same effect, was well calculated to control the verdict and was improperly admitted, we think the judgment should be reversed and the cause remanded. Reversed and remanded. Adopted June 17, 1890.