Dunham v. Forbes

25 Tex. 23 | Tex. | 1860

Bell, J.

It is assigned as error that the court refused to permit the claimant of the property to introduce the witness, John Dunham, a second time, in order to rebut the testimony introduced by the plaintiff in execution. It is undoubtedly competent for the party holding the affirmative of the issue, after the party holding the negative of the issue has closed his testimony, to introduce rebutting evidence, and it is altogether proper, for the purpose of rebutting the testimony introduced by the defendant, for the plaintiff to call a witness who has previously testified in the cause. It is no objection to a witness, when offered for such a purpose, that he has already been examined. But in the case before us, the bill of exceptions states that “the witness was excluded because he had been examined at the commencement of the suit upon the same points.”

We must presume this statement to be true. -It must have appeared to the judge below, that the witness could only repeat, when called a second time, what he had stated upon his first examination; and if this were so, it was very proper for the judge to decline to listen to a repetition of what had been once said. If the judge below denied the claimant the right to offer rebutting evidence, then it was the duty of the claimant whose right was thus denied, to take such a bill of exceptions as would show to-this court precisely what he proposed to do, and what the judge refused to permit him to do. With the bill of exceptions which this record contains before ns, we cannot believe that the judge below refused to permit the claimant to rebut the testimony offered by the plaintiff in execution, merely because the witness by whom the plaintiff proposed to make such proof had already been examined by the claimant in the opening of his cause.

There is no other question in the case which it is necessary to consider.

The judgment of the court below is affirmed.

Judgment affirmed. '