Bracken v. Neill

15 Tex. 109 | Tex. | 1855

Lipscomb, J.

This suit was brought by the appellee against the appellant Bracken, and by a supplemental petition, Hunt, the administrator of the brother of the appellant, with the will annexed, alleging that the appellant was one of the heirs of the said Hunt’s testator, and that without being secured from the amount of his portion of the estate, he would not be able to collect his debt if he should recover judgment; and Hunt was enjoined from selling the land belonging to the estate. The suit against Bracken was for a fraud and breach of trust, in failing to pay over an amount of money, which he had received from Neill, the plaintiff, in trust to be paid by Bracken to McHenry, at that time the executor of the estate of the deceased Bracken. It was alleged that the said defendant had receipted for the sum, and promised to deliver it to McHenry, and failed to do so, and that thereby the plaintiff had sustained very great damage. There was a verdict for the plaintiff for the amount of the receipt and interest, and damages to the amount of one hundred dollars, the amount of the attorney fee paid by Neill, for which judgment was awarded against Bracken, and the injunction was dissolved and dismissed as to Hunt, at his, Hunt’s, costs.

The first error assigned, which we propose to discuss, is the excluding the evidence taken by the interrogatories to A. H. Philips, offered by the defendant below. Interrogatories, to be answered by the witness, were filed and had been crossed by the plaintiff, and a commission had issued to the Clerk of the District Court of the county of Victoria, to take the answers to the same, and make a return to the District Court of the county of Guadalupe. The commission was executed by the Clerk of the District Court of Gonzales county, where the witness was at the time attending Court, and returned by him. The evidence had been properly offered, and no objection made, by notice or otherwise, to them, until offered to be read on the trial, and then the objection was made and sustained, on the ground that the commission had been executed and returned by the Clerk of Gonzales county, to whom the commission had not been directed.

We believe the objection was made too late to have been received. It was in direct opposition to our Statute, to have received such objection, without giving previous notice of it. Article 773, Hart. Dig. is as follows, i. e. “ No objection to the “ form of depositions, or to the manner of taking them, in any “ suit, shall be heard, unless they are in writing, and notice “ thereof is given to the opposite counsel, before the trial of “ the suit commences.” (See Haggarty v. Scott, 10 Tex. R. 525, and same vol. 520.)

It may, however, be said that the evidence of the witness could not have changed the result, as it would have established the liability of the defendant to the plaintiff; to which it may well be answered, that although it would have shown a liability, yet, that liability would have been of a different character, and would have changed the verdict, so far as it gave the special damage of the'attorney’s fee, found by them. This damage was given upon the supposition that the defendant below had been guilty of a fraudulent breach of trust in not paying over money that he had received from the plaintiff under a promise contained in his receipt to pay it over to McHenry, the executor, to whom the plaintiff was indebted. The evidence would have proven that no money had been received, but that being indebted to Neill, the plaintiff, he had promised to pay that amount for him to McHenry. ‘His failing to do so would not have amounted to a fraudulent breach of trust, entitling the plaintiff to recover special damage ; but it would have been only evidence of the amount promised to be paid; and the amount with damages equal to the interest, would have been all the plaintiff could have recovered.

On the trial, the plaintiff offered in evidence and read, though objected to by the defendant, the answer of McHenry to an interrogatory propounded to him, in a suit between Hunt, administrator, with the will annexed, of Bracken, deceased; and Rogers and others, without showing that McHenry was dead, or showing that Bracken, the defendant below, was a party interested in the result of that suit. It is not shown what was the subject matter of the suit.

We believe the Court below erred in receiving such evidence, because it does not follow, that because the defendant was one of the heirs, lie was a privy or indirectly a party to the suit, because the administrator with the will annexed was ; and he cannot be affected by evidence given in that suit. He had no opportunity to cross-examine the witness, and therefore ought not to be affected by this testimony. (See Greenl. Ev. Sec. 189 ; 2 Phil. Ev. 8 and 9.)

The plaintiff also was permitted, though objected to by the defendant, to read the finding of the jury of a special part in that case. In this, too, we believe the Court below erred, for the same reason, that he was not a party to it.

We believe that the Court also erred in rendering jundinent for costs against Hunt, the administrator on dissolving and dismissing the injunction. He was acting in a representative capacity, and was arrested in closing the estate, at the instance of the plaintiff below, and does not appear to have thrown any embarrassment in the way of the plaintiff, in "the adjudication of his claim, and it is very questionable whether the injunction ought to have been granted at all, but if granted, it ought not to prejudice others who liad no interest in the proceedings. We therefore believe that the costs of the injunction ought to have been adjudged against Neill, for whose benefit it had been granted, to the prejudice of disinterested persons in the litigation between Ncill and Bracken. The judgment for costs of the injunction against Hunt, must be reversed also, and it can here be rendered against Neill for the costs.

We believe that Neill may, notwithstanding the errors noticed, sustain his judgment, by entering a remittitur, in this Court, for the one hundred and fifty dollars, the special damage found by the jury. We have never much regarded the distinction in actions; and as the evidence clearly shows that he is justly entitled to the amount that Bracken, the defendant, promised to pay for him to McHenry, we can perceive no objection to the judgment standing for that amount, after deducting therefrom the special damage before noticed ; but, in consideration of the errors in the Court below, it must be at his costs. If the remittitur is so entered, the judgment will be affirmed as to him, but reversed and rendered, as to Hunt, as before stated; if not, the judgment will be a general reversal, and the cause remanded.

Reversed and re-formed.