Brown v. Chenoworth

| Tex. | Jul 1, 1879

Bonner, Associate Justice.

The first assignment of error is as follows: The court erred in refusing to give a jury in this case on the demand of the defendants Ben Brown and Earl A. Brown, which demand was made at the Spring Term of the District Court of Travis county, 1878, and said refusal of the court was excepted to at the time it occurred.

The bill of exceptions shows that at the commencement of the term of the court the judge set the jury trial docket in civil cases for the fourth week, and proceeded to work on the non-jury docket. During the first week, and before this cause was reached as a non-jury case, the appellants asked the court to grant them a jury in said cause, which request was refused, on the ground that a jury had not been demanded at a prior term of the court, the case having been at issue before the day fixed at the prior term of the court for calling the jury trial docket. Appellants. excepted to the ruling of the court refusing a jury.

In the case of Dean v. Sweeney, ante, p. 242, decided at the late Galveston Term, we held that the acts of the fifteenth Legislature, 78 and 170, were.not intended as an abridgment of the common-law and constitutional right of trial by jury, further than would result from a'wholesome regulation of the system, and should not, by too liberal construction, be extended beyond the legitimate objects to be accomplished; that if at a preceding term a jury had been waived or demanded, this should not control the right, in the discretion of a party, to demand at a succeeding term a trial by jury which had before been waived, or to waive such trial which had before been demanded.

That the defendant had not tendered the jury fee, was, wje think, under the circumstances, immaterial. The refusal was not placed by the court on this ground, but specially because the jury was not demanded at the first term when issue joined, thus, for the purposes of the motion, dispensing with the tender; and, besides, the case wras called for trial before the expiration of the time when, under the law, the defendants had the right to deposit the jury fee.

The first error assigned was well taken, and for this the judgment must be reversed.

As the cause must be remanded, we deem it proper, as far as we can without prejudice to either party on another trial, to express an opinion on some of the other points raised in the record.

The defendants pretermit in their brief the second, fifth, and ninth errors assigned.

The third error assigned is, that the court erred in sustaining plaintiff’s exception and demurrer to the fifth count of the answer filed April 24, 1878, by defendants Brown and Brown.

In the fifth count, appellants pleaded that appellee was not the rightful owner and holder of the note sued on ; that Joseph S. Able, the payee, while it was his property, was, on his own petition, adjudged a bankrupt in the United States Court for the Western District of Texas, and that all his property, including the note sued on, was, by authority of said court, transferred to John C. West, assignee of Able, and vested in him for the benefit of creditors; that after the discharge of West as assignee of Able, such property as had vested in him as assignee, and had not been disposed of by him, belonged to the creditors in bankruptcy of Joseph S. Able, they having received only a small percentage of their indebtedness, and their claims being still unpaid.

To this the plaintiff filed general demurrer, and also two special demurrers—

1. That said count did not allege that the property in question was ever reduced to possession by the assignee prior to his discharge.

2. That appellants did not aver that they were creditors of said Able, and they could not take advantage of the fraud (if fraud there was) perpetrated upon the other creditors of Able.

These demurrers were, in our opinion, well taken.

It has been repeatedly decided by this court, that the apparent legal owner of a negotiable note may maintain a suit on the same, and that the mere naked fact that he is not the real owner would not be matter of defense, either in bar or in abatement; but that the defendant must allege and prove some matter of defense against the beneficial owner. (McMillan v. Croft, 2 Tex., 397" court="Tex." date_filed="1847-12-15" href="https://app.midpage.ai/document/mcmillan-v-croft-4887006?utm_source=webapp" opinion_id="4887006">2 Tex., 397; Thompson v. Cartwright, 1 Tex., 87" court="Tex." date_filed="1846-12-15" href="https://app.midpage.ai/document/thompson-v-cartwright-4886849?utm_source=webapp" opinion_id="4886849">1 Tex., 87; Butler v. Robertson, 11 Tex., 143; Andrews v. Hoxie, 5 Tex., 183; Jackson v. Elliott, 49 Tex., 69.)

The fourth error assigned is, that the court erred in requiring defendant Ben Brown to answer, over the objection of his and E. A. Brown’s counsel, the question of plaintiff’s counsel, asked seriatim, whether the signatures of B. Brown and E. A. Brown, which were signed to the plea of non est factum and other papers which had been introduced in evidence, were genuine.

Ben Brown, one of the defendants, was put on the stand by the counsel for himself and E. A: Brown, and testified that he never signed the note sued on; that he and E. A. Brown paid for the Kaufman county lands in cash, and never gave a note to J. S. Able for the purchase-money; that he believed the signature of his co-defendant E. A. Brown was not genuine, and that the note was in the handwriting of Joseph S. Able.

Plaintiff’s counsel then took the plea of non est factum filed by appellants in this case and signed by them, and also the depositions of the witnesses B. Brown and E. A. Brown, taken in the case, and turned down the signatures “B. Brown” and “E. A. Brown” on the plea of non est factum so that the signatures alone were visible to the witness, and then asked him if he signed said paper, and whether his brother, E. A. Brown, signed the same. Witness answered that he did not think that either of said signatures was his or his brother’s. Counsel for plaintiff also turned down the signature “B. Brown ” to his depositions so that the signature alone was visible to witness, and asked him if that was his signature, and he replied that he did not think that it was.

The same course was pursued by plaintiff’s counsel, while cross-examining the witness, with reference to the genuineness of the signatures “B. Brown ” and “E. A. Brown ” attached to a receipt from B. Brown to J. S. Able, and first and second answers in chancery, made in the United States Court at Austin and sworn to by B. Brown and E. A. Brown. The appellants, by their counsel, objected at the time to the question asked of the witness B. Brown by appellee’s counsel as to the genuineness of the signatures “B. Brown ” and “E. A. Brown” attached and signed to each of said papers, and also to the mode of examining said witness adopted by plaintiff’s counsel—■

1st. Because said question, as put, is illegal, under the circumstances of the case.

2d. Because the witness cannot be legally asked to answer as to the isolated signatures.

3d. Before the witness can be questioned as to the signatures, he should be privileged to inspect said several papers and ascertain their nature, character, and contents.

4th. Because the examination of the witness in the manner proposed was unfair to the witness.

The court overruled said objections and required the witness to answer the questions as asked.

The witness not only testified as to his own signature, but, unlike the case of the North American Fire Insurance Co. v. Throop, 22 Mich., 160, he also gave his opinion as to that of E. A. Brown and as to the handwriting of Joseph S. Able, thus making himself an expert.

We think, under the general rule of practice, that the opposite party should have considerable latitude, on the cross-examination, to ascertain the accuracy of the knowledge, skill, and judgment of the witness; and that, under the circumstances, the test was not an unreasonable one, and particularly as on reexamination the witness had the opportunity of explanation with the papers exhibited in full before him.

The sixth error assigned is, that the plaintiffs did not explain, before or after the introduction in evidence of the note sued on, the material alterations apparent on the face of the note, as they were required to do by the plea of non est factum interposed by the defendants Brown and Brown.

This alleged error does not show distinctly any action of the court complained of.

The actual issue made by the evidence under the plea of non est factum related to the execution of the note. The record does not show that any point was made upon the alleged alteration, and it is admitted that no such question was made until the final argument upon the merits and after the testimony had closed.

Under proper rules of practice, this is considered a waiver of the objection, as the other party, had the same been made in due time, might have removed it, and as the court is called on to pass only upon the objections actually made.

The seventh assignment of error is, that the court erred in admitting the declarations of John Chenoworth in evidence over the objections of defendants Brown and Brown.

The bill of exceptions, after reciting testimony tending to prove a conspiracy between the defendants Brown and Brown, B. F. Hammond, and John Chenoworth, to coerce a compromise from the plaintiff, proceeds as follows:

“Plaintiff then offered to prove, and did prove over the objections of defendants Brown and Brown, that John Chenoworth, on several occasions, at Marlin, when neither of the defendants Brown and Brown nor B. P. Hammond were present, threatened to whip his wife (the plaintiff) unless she signed said compromise. To which ruling of the court in admitting said testimony said defendants then and there excepted,” &c. The judge presiding then adds: “The evidence showed to my mind a conspiracy to secure the release, and that the act of one is the act of all.”

If in the opinion of the judge presiding, as recited in the bill of exceptions, the evidence showed to his satisfaction the alleged conspiracy, then there was no error in admitting the proposed testimony.

We think that it would not be proper to express any opinion upon the other alleged errors assigned.

Judgment reversed and the cause remanded.

Reversed and remanded.