Etter v. Dugan

A. S. Walker, J. The answer was not required to be verified by affidavit. The note was not under seal. 2. It is evident that neither fraud, accident nor mutual mistake is alleged in the answer, nor is it in terms stated that the note was without consideration. In fact the answer shows there was a consideration, which it seeks to show had failed. 3. Eor was the contract, or any part of it, as alleged in the answer, illegal. While the attachment was subject to be discharged by the subsequent bankruptcy proceedings ..against Cummings & Carter, such contingency could not .attach to the levy of the attachment the taint of illegality, other or beyond its defect as a lien, if sought to be asserted against the assignee in bankruptcy. Until discharged by the bankruptcy proceedings, in fact, the attachment was valid. Eor does it appear that an adjudication, even to that extent, had been reached in the proceedings. 4. The failure of the consideration, or rather the happening of the alleged contingency upon which, by the contract set out in the answer, the obligation to pay the note should be defeated, as pleaded presents a question of some difficulty. The failure is that Eenet was compelled to surrender said goods, and did surrender the same to the officer of the bankrupt court, under proceedings in bankruptcy against said ■Cummings & Carter. And they aver that there is now [179] pending in the United States circuit or district court, at Tyler, a suit by J. C. Easton, assignee in bankruptcy of the estate of Cummings & Carter, against J. II. Eenet for the same goods. This plea was filed October 8, 1874. The note bore date July 30, 1872. This statement places the goods in litigation in a suit brought by Easton. The probability as to the result of the suit is not stated. It may be presumed from the allegations that the United States marshal may have seized under se7 questration the goods pending the suit. But there is no allegation affecting the property rights of Eenet in the goods beyond the mere pendency of suit for them. This allegation does not meet the condition that Eenet should have to “surrender” the goods. The alleged breach of the contract as given in the answer is not sufficient. The loss is not total, nor is any fact given from which a partial failure can be measured; and it does not appear but that he may recover against Easton, and so have the full consideration. Dugan could have contracted with Eenet by parol, in a transaction of which the note was part, that he should not be liable for the debt except on his holding the goods. Thomas v. Hammond, 47 Tex., 52; Ins. Co. v. Lacroix, 45 Tex., 170; Wharton on Ev., §§ 927, 928; 1 Green 1. Ev., 284a. While the note was payable at a fixed day, still, had it been paid, Tenet’s rights, under such agreement, could have been enforced by suit against plaintiff. As the note was not paid, and this action is between the original parties, it does not appear why the whole subject, and the respective rights of the parties as growing out of their contract applied to the facts existing at the trial, could not have been litigated in one suit. Being proper in matter, and as the mode of proof was not before the court on the exceptions to the pleadings of the defendant, it was not proper to hold the special answer bad because the contract set up was not alleged to be in writing. Thomas v. Hammond, 47 Tex., 52; Lewis v. Alexander, 51 Tex., 585; Gould on Pl., ch. 4, secs. 43 and 46. [180] But while the answer was not defective for the reasons given.in the exceptions, it was fatally defective in failure to show a defense on the merits. It acquired no aid from the insufficient attack upon it. ■ Presenting no defense, the court could disregard it without injury to the defendant. The ruling of the court being correct in excluding the answer, any irregularity in the mode of reaching the result would be immaterial. 5. The court below evidently assumed judicial knowledge of the genuineness of the signature, “L. Bostick, Clerk,” and also of his character as a clerk of his court. There is no statute or practice of courts requiring that clerks of the district courts should attach their seals to their official certificates to affidavits, file marks, etc., for use in the court where made. At the time the affidavit by Dugan purported to have been made the district courts had exclusive probate jurisdiction — much of judicial power in probate matters was vested in clerks of said courts. The affidavit to the claim, whether rejected or alloxved, became, under the law, a filed paper of the district clerk’s office. If allowed, it was filed xvith the clerk for approval by the court.' Pas. Dig., 5658. If rejected, then by suit thereon in the same court. Pas. Dig., 5659. That a clerk should go out of office did not render his signatures of less force than they were when made by him in the course of his duty. The office does not die; the official acts remain as facts in the courts, though incumbents may change. The court takes cognizance of its own subordinate officers, and necessarily of their signatures. This knowledge should extend to the acts of former officers approving judicial proceedings in the proper office. Wharton on Ev., 325; Norvell v. McHenry, 1 Mich., 227; Dyer v. Lost, 51 Ill., 179. The offer to prove that the signature was not the handwriting of L. Bostick was not, as shown in the bill of exceptions, equivalent to an offer to prove the attestation a forgery,'or not the authorized act of Bostick. Defendants did not propose to show that L. Bostick was not clerk of [181] the court where the suit was tried, at the date of the affidavit, or any fact showing the action of the judge to be a mistake. [Opinion delivered May 3, 1880.] 6. The reason given by the district judge for refusing to entertain the objections is entitled to some force, being “ that the objections cannot now be made unless they had been specially made when the claim,, was presented to the administrator for allowance.” The authority relied on by appellants (Walters v. Prestidge, 30 Tex., 71) holds that an affidavit wanting the essential statutory requisites is a nullity. It does not reach the matter involved here. The affidavit of Dugan to his claim, is perfect, if made before the proper officer. If, in fact, Bostick had not been a clerk of the court where the affidavit was exhibited, or if his signature had been forged to the paper, it certainly could have been shown. Mere irregularities in the form of the jurat ought to have been noticed when the claim was presented, if at all. If the administrator knew that the affidavit was genuine and made before the proper officer, but imperfect in authentication, such defect ought to have been acted upon at the time. Keese v. Beckwith, 32 Tex., 736; Hansel v. Gregg, 7 Tex., 228. Finding no error requiring a reversal, the judgment below should be affirmed. Affirmed.