Case No. 5468 | Tex. | Jul 1, 1885
The act of 1841, “to protect the rights of the heirs and next of kin to the members of the Georgia Battallion and other volunteers from foreign countries who have fallen in the battles of the republic, or otherwise died in the limits of the state,” forbade administration upon the estate of any such soldier by any other than his next of kin, unless such administrator produced an authority from the heirs or next of kin of such deceased soldier, authorizing him to take administration of the same. Art.
The title from the administrator under which the appellees claim must, under this law, fail, whether the administration was taken before or after the passage of the act' of 1841. If taken before, there was an absolute want of power of the probate court and the administrator to convey the lands of the deceased soldier, except by having the consent of the heirs given and recorded as the statute provides it shall be. If taken after, the court is powerless to grant letters to another than an heir or next of kin, and thereby assume jurisdiction over the property of the estate, except under the authority given by such heirs or next of kin.
The facts established, taken in connection with the public history of the country, show clearly that B. W. Toliver was a soldier in the army of the republic of Texas, and it is a fact familiar to history that many who fell at the massacre at Goliad were volunteers from foreign "countries. T. W. Taliaferro, the brother of the deceased* testified, in depositions, fully to the fact that he was a volunteer from the state of Georgia when he fell at Goliad. Mrs. A. T. Chinn testified that he was massacred with Fannin’s men at Goliad, in 1836. But the testimony of T. W. Taliaferro was excluded from the jury on objections made by the defendants to its admissibility. The correctness of that ruling is called in question by the first assigned error. The court did not err in excluding the evidence; the interrogatory to which he answered the above stated fact was general and indefinite, not calling attention to any special matter: The witness, in his answer, recurred to a previous interrogatory, and he proceeded to amplify the answer he had made to that (the third interrogatory) by his answer to the one under consideration. If his answer had been responsive to the third interrogatory it might have been admissible, if he had confined himself to that matter. The third interrogatory inquired only as to where and when B. W. Toliver died. The witness, however, proceeded to give a full history of his brother’s departure for Texas, and to show many particulars connected with his death as one of Fannin’s men
This evidence being necessary to maintain the principal point of the plaintiffs’ case, they took a non-suit, and filed a motion for a new trial. Under these circumstances they were entitled to the favorable consideration of the court in the exercise of its discretion in granting a new trial. The evidence that was excluded went to the essential merits of the plaintiffs’ case, and it was excluded on a point of practice concerning which their counsel may have been mistaken as to the law, but which fact would not necessarily deprive them of relief. A new trial may be granted on the ground of surprise, even when such surprise is occasioned by the correct ruling of the court, and although negligence may be properly imputable to the attorney, if the party asking it has a meritorious cause of action and gross injustice would otherwise be done him. Buford v. Bostick, 50 Tex., 371" court="Tex." date_filed="1878-07-01" href="https://app.midpage.ai/document/buford-v-bostick-4893160?utm_source=webapp" opinion_id="4893160">50 Tex., 371. It is true that the plaintiff does not in his motion for a new trial specify, as one of the grounds therefor, surprise at the ruling of the court excluding his evidence, but he insists that the whole evidence that had been introduced to the court by the plaintiffs and by the defendants showed that the defendants were not entitled to recover the land and to have their title adjudged superior, to that of the plaintiffs. There was sufficient evidence before the court to show the character of the plaintiffs’ title as compared with that which prevailed on the trial, and considering the fact that the merits of the plaintiffs’ title would have been complete and the superior and paramount one, if the excluded testimony had been allowed, we think that the refusal to grant a new trial went to the very merits of the case, and that gross injustice would probably result in refusing to allow the plaintiffs another trial. The plaintiff’s claim for a new trial was meritorious and fundamental, and was addressed to the equitable powers of the court in the interest of broad and comprehensive justice.
The plaintiffs’ evidence that had been introduced remained of course before the court, no less after than before they took a non-suit. They, the plaintiffs, were retained in court against their will, and for all the purposes of the trial of the defendants’ counter-suit in reconvention to remove as a cloud the plaintiffs’ claim from their title, their evidence was unquestionably entitled tó be considered. After taking the non-suit the plaintiffs were made to occupy the attitude of defendants as to plaintiffs’ claim and prayer, and the defendants, as to it, were plaintiffs or actors. The patent, which was in evidence, under which both parties claimed, recited on its face
Under all the evidence it was far from being clear that the defendants had come up to this requirement in a manner so full as to warrant the court in feeling satisfied that, under a fair and full development of all the evidence which plaintiffs could bring to their aid on another trial, justice would be subserved in allowing the judgment to stand.
We will in conclusion refer to the cases of Duncan v. Veal, 49 Tex., 603" court="Tex." date_filed="1878-07-01" href="https://app.midpage.ai/document/duncan-v-veal-4893086?utm_source=webapp" opinion_id="4893086">49 Tex., 603, and Todd v. Masterson, 61 Tex., 618" court="Tex." date_filed="1884-05-20" href="https://app.midpage.ai/document/todd-v-masterson-4894438?utm_source=webapp" opinion_id="4894438">61 Tex., 618, as indicating- proper rules and principles for the trial of causes like this. Similar facts exist in the former case.
We are of opinion that the judgment be reversed and the cause remanded.
Bevebsed and demanded.
[Opinion approved June 16, 1885.]