13 Tex. 52 | Tex. | 1854
There are only two grounds of error that we-regard as material, presented by the record in this case. The-first is the granting a new trial, on the application of the defendants.
There was a judgment by default, and a writ of inquiry executed before Judge Hancock, holding the Court for Judge Devine. Judge Hancock had signed the minutes of the proceedings before him, and Judge Devine taken his seat on the bench, before the motion of the defendants for a new trial had been acted upon; and the motion was granted by the latter. Plaintiff’s counsel allege that it was not competent for Judge Devine, who was not presiding when the judgment was rendered. It would be more regular, where one Judge sits for another, for him to act upon all matters or motions arising out oí his proceedings, before he leaves the bench ; bnt it is not indispensible that it should be so done, and if anything is left undone when he leaves the bench, and another Judge takes the seat before the expiration of the Term, the Judge last taking the bench can dispose of, and act on such matters, if he was competent to have tried the case out of which the motion arose. To make the case most strong" for the plaintiff’, suppose the Term had expired and the Court adjourned, there can he no question bnt the Judge of the district, Judge Devine, could, on sufficient grounds, have granted a new trial, in the exercise of equity jurisdiction. (Gross v. McClaran, 8 Tex. R. 341; Stewart v. Jones, Adm’r, 9 Id. 469; Mussina v. Moore, Supra.)
The second ground of error we propose examining, is the ruling of the Court in excluding from the jury the plaintiff’s evidence of the location by Mm, of good and valid land certificates, on the land sued for. These locations were made in 1847, and shortly after a suit was brought on them for the land in controversy in this case, which was finally decided in tMs Court in favor of the defendant, and this suit was commenced for the same land within the time prescribed by the statute, within which a second suit is allowed to be brought
The question then arises, Does a location under these circumstances come within the spirit and meaning of the Act of February 10th, 1852 ? That it is not an exception, provided for by a literal construction, must be admitted. It is not, however, to be believed that the statute was intended to require of a locator to do a thing not in his power, but was designed to put an end to the negligence of locators, that had become a serious evil, in wilfully omitting to have the land located, surveyed, preventing others from locating thereon, and perhaps speculating on the chances of an appreciation of the land located, or raising the location and making a more valuable selection; and further, that, by so holding locations
We conclude, then, that the locations, in this case, had not been annulled, and that the Court erred in excluding them from the jury, for which error the judgment is reversed and the cause remanded.
Be versed and remanded.