Miller v. Houston City St. Ry. Co.

LOOK®, District Judge, (sifter stating the facts as above.) Tills cause having been ivied without a jury by a, siipul.3J.I0n of paxileo under section 7CO, of Boy. B>t, the ridings of the court, duly presented by si bill of exceptions, may be reviewed, and, were there a special finding of facts by the court, the review might extend to the determination of the sufficiency oí file facts found to support the judgment. Miller v. Insurance Co., 12 Wall. 285. In this case the judgment was a simple finding for the defendant, as appears from the record, in the following words: ‘Anti now, upon due consideration, Ü10 court finds for the defendant, wherefore it Id considered by ¡he court anil so ordered, adjudged, and decreed, that the plaintiff's general and special demurrers and exceptions to the defendan't’s third amended answer bo, and the same are hereby, overruled, to which ruling oí the court on said demurrers and exceptions the plaintiff excepts; and it is further considered by the court, and so ordered, adjudged, and decreed, that tho plaintiff lake nothing by Ms suit, and that defendant recover from the plaintiff all costs about this suit incurred, and have execution therefor.” What in tlie record claims to be a finding of facts is an extended statement of the testimony introduced in the case, occupying some 89 pages of the record, with no ultimate finding or determination. This is not considered such a special finding of facts as is contem [370] plated by the statute. In Morriss v. Jackson, 9 Wall. 125, where this question was under consideration, the court says: “It is not a mere report of the evidence, but a statement of the ultimate facts on which the law of the case must determine the rights of the parties; a finding of the propositions of fact which the evidence establishes, and not the evidence on which those ultimate facts are supposed to rest. * * * The bill of exceptions, while professing to detail all the evidence, is no special finding of facts.” Mining Co. v. Jackson, 100 U. S. 37; Crews v. Brewer, 19 Wall. 70. There being nothing in this case that can be considered such special finding, it is impossible to determine the amount of consideration given in the final determination of the question to any particular plea which had been pleaded, and thus decide whether, if there might be any plea which should not have been sustained, that particular one was or was not the one upon which final judgment was given. It necessarily follows, therefore, that if any one of the several pleas was improperly sustained it would be error. It has been suggested that if in any plea sufficient grounds of defense are found to sustain the judgment it might be presumed that the court having the entire cause under consideration had given judgment upon that alone, regardless of the others, which might be bad; but, in the absence of a finding of fact showing that to have been the case, we do not think it can be presumed, and in reviewing and considering the pleadings the same practice must be followed as if the case had been tried by a jury, namely, a review of the rulings upon th'e pleadings and the admissions of evidence. The first error assigned is the overruling of plaintiff’s special demurrer to the second plea of defendant’s third amended original answer, which denies that the plaintiff was, in either or any of the capacities in which he sues, the owner of the several certificates of stock mentioned and sued for, or of any right or interest in said certificates that authorized or could authorize him to recover thereon, or maintain this suit, because such plea was not verified by affidavit. Upon an examination of this plea it will be seen that, although the words, “in either or any of the capacities in which he sues,” are used, yet the intended force and effect of the plea is not to deny the right to sue on account of his personal capacity, but on account of his lack of right of property in the alleged certificates. Eor does it deny the execution or genuineness of any document, or of its indorsement, and does not, we think, come under the provisions of article 1265, Rev. St. Tex. 1879.1 The third plea alleges that the certificates of stock upon which suit was brought were acquired through an illegal and gambling contract between one Brady and plaintiff, but it does not allege that Brady had in any way repudiated that contract, or had made any [371] claim upon defendant company for said stock, or that defendant company had not obtained and held the benefits and advantages of the stock in the absence of these certificates. We do not consider that simply the plea, of the illegality of the contract by which such certificates of stock were obtained, standing by itself, a sufficient plea, and the exception to it should have been sustained, Railroad Co. v. Durant, 95 U. S. 576; Chit Cont. 976; Myers v. Meinrath, 101 Mass. 366; Helm v. Swiggett, 12 Ind. 194; King v. Green, 6 Allen, 139. Hie fcurib plea of defendant company urges as a ground of defense that the certificates sued on were only held as collateral security for an indebtedness claimed by said plaintiff against one William Brady, and that such Indebted ness, if it ever existed, was barred by the statutes of limitations of the state of Texas. To this plea plaintiff demurred specially, because said matters were not a proper subject of inquiry in this suit; that it is immaterial and of no concern to the defendant herein whether any indebtedness owing by William Brady is or is not barred by the statute of limitations. The suit was upon certificates of stock allcge'd to have been assigned to plaintiff by one T. W. House in the course of business. Certificates of stock held as collateral security for an indebtedness are treated as a pledge, and not as a mortgage. Their possession passes with the pledging. Although the remedy may be barred by the statute of limitations, the debt is not extinguished, and it is within the discretion of the debtor to plead Hie statute or not. It was a personal privilege of Brady to plead the bar given by the statute, if he saw fit, or waive such rights; and it was for him alone. In Hudson v. Wilkinson, 61 Tex. 606, this question was directly passed upon, and it was held that “in case of a pledge the fact that the debt which it was made to secure is haired by the statute of limitations would constitute no defense to an action by the pledgee against another for the wrongful conversion of the property.” 'This is accepted as the law of the state in which this action is pending, and controls in all matters of limitations. We consider the demurrer to this plea to he good, and that it should have been sustained. We consider it unnecessary to review further the pleas and demurrers thereto, as they appear to allege matters upon which evidence might be given which would be directly relevant and material to the issue. In the matter of the admission of evidence upon the several points specified in the bill of exceptions, we think it may well be said, as was said in Mining Co. v. Taylor, 100 U. S. 37, that “the admission of immaterial or irrelevant evidence is no sufficient reason for reversing a judgment when it is apparent that it cannot have affected the verdict or the finding injuriously to the plaintiff in error.” It does not appear from the record how this testimony was taken, whether viva voce or by deposition, or whether the questions were objected to before being answered or not, or whether there was any motion to suppress any portion of the depositions or exclude the testimony, or whether there was any motion to exclude or suppress before the [372] evidence had actually been submitted to the court, or whether there was any direct ruling upon such, question at the time, or exceptions, if rulings were made. The admission of evidence in a case being tried by a court without the intervention of a jury does not require the nice distinction of ruling that it does when it is to go to a jury, and the fact that testimony is given in an answer or read in a deposition does not necessarily imply that it is improperly considered in the final examination and conclusion of the case. The same judicial mind that would exclude it from a jury, can as readily set it aside upon a final consideration; and, where there appears sufficient evidence to justify the conclusions reached, the presumption is that the irrelevant testimony, although heard and not positively excluded by order, was set aside eventually, and not considered to the injury of the plaintiff in error. It is considered that the error in overruling the demurrers to the third and fourth pleas will necessitate a new trial, and it is ordered that the judgment below be reversed, and the cause be remanded for a new trial. Footnotes [1] Rev. St. Tex. 1879, art. 1265: “An answer setting up any o£ the following matters, unless the truth of the pleadings appear on record, shall be verified by affidavit: * * * (2) That the plaintiff has not legal capacity to sue., * * * (3) That the plaintiff is not entitled to recover in the capacity in which he sues. * * * (9) A plea denying the genuineness of the indorsement or assignment of a written instrument, as required by article 271.”