254 S.W. 927 | Tex. Comm'n App. | 1923
Objection is made, in the motion for rehearing, to the'statement in our original opinion to the effect that the testimony of defendant Jackman that Mrs. Gay pointed out the cattle which Jackman took possession of as the cattle of Lindeman, was struck from the record by the trial judge. The record in this regard shows the following : The testimony referred to was objected to when offered, but the objection was overruled. The bill of exceptions taken by plaintiff to this ruling states that later plaintiff moved to strike out this testimony, but the motion was overruled “at that time.” The qualification to the bill of exceptions recites that:
“The testimony, as shown above, was admitted over the objection of counsel for plaintiff, as therein shown, but thereafter, upon further reflection, the court concluded that such evidence was incompetent. While the court did not formally exclude such evidence from the jury, yet, in the action of the court in instructing a verdict for the plaintiff and in overruling motion for new trial by defendants, the court did, in effect, exclude this testimony.”
Defendants in error now insist that in this state of the record the cause should be remanded in order that they may make other proof of Lindeman’s exclusive ownership of the cattle. The contention in this regard is that so long as this testimony was not formally excluded from the case, defendants in error relied, and had the right to rely, thereupon as constituting prima facie evidence of Lindeman’s title, and that, upon the court’s' taking the view that the evidence was not admissible and had no probative force, defendants in error should have been given the opportunity of withdrawing their announcement of ready so as to offer other evidence of Lindeman’s title.
We have carefully considered the ease from this viewpoint, and have reached the conclusion that the judgment of the trial court was properly affirmed.
The evidence referred to had, in our opinion, no force whatever as proof of title in Lindeman. It was utterly incompetent for that purpose, and even if admitted without objection we are inclined to the view that the trial court had the right to disregard it altogether. In this connection we refer to the following cases: Gilbert v. Odum, 69 Tex. 673, 7 .S. W. 510; Henry v. Phillips, 105 Tex. 459, 151 S. W. 533; Webb v. Reynolds (Tex. Com. App.) 207 S. W. 914.
It is our conclusion that the motion for rehearing should be overruled.
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