32 Tex. 800 | Tex. | 1870
Plaintiff, Harwood, alleges that Kent being indebted to Taylor, McElroy & Co., by note, in the sum of two hundred and five dollars, to secure the payment in part, conveyed to him in trust a certain buggy, of the value of one hundred and seventy-five dollars. That defendant, Blythe, having got possession of the buggy, retains it without ownership, or authority of the owner, against the request and demand .of plaintiff.
The plaintiff, upon the trial, introduced testimony to sustain the material part of the allegations in his petition, and closed. Whereupon, the defendant demurred to plaintiff’s testimony.
It is presumed that the defendant believed that the plaintiff had not proved what he deemed sufficient to entitle Mm to a verdict, and that he preferred a decision of the judge to that of the jury on this point.
That parties to a suit can waive a trial by a jury in a civil ■cause, and submit both questions of law and of fact to a judge, ■can not be doubted. And it is equally certain that in all cases wherein the matter in controversy is of the value of twenty dollars, that the right of tidal by jury is preserved, and can not be withdrawn from them at the instance of either party, without the concurrence of the other. (Constitution of 1866, Art. 4,§2°.)
The District Court is composed of two distinct bodies—the judge and the jury. The province of the judge is to decide •and state the law; that of the jury to find the facts. A special verdict may be found by the jury, and the judge may apply the law thereto and pronounce a judgment thereon. On the •other hand, the judge may charge the law to the jury, who may apply the facts thereto, and find a verdict for either party. “It is the duty of the judge to determine the competency of evidence and to decide all legal questions that arise in the progress of the trial; and consequently when, assuming that all the testimony adduced by the one or the other party is true, it does ■or does not support his issue, his duty is to declare this clearly •and directly.” “ Whether there be cmy evidence, is a question for the judge; whether there be sufficient evidence, is for the jury.” (Chandler v. Von Roeder, 24 How., 226; 1 Green. Ev., § 49.)
A demurrer to the evidence is a demurrer to the competency of the evidence, and admits its sufficiency, consequently all the judge can decide on a demurrer to the evidence is whether any competent evidence was given or not. As there was nothing in the record showing that the opposite party waived a jury, but, on the contrary, as the demurrer to the evidence precluded
The course pursued by the defendant would preclude both parties from haviug any further facts or testimony, and leavesns no other alternative than to render such a judgment as the District Court should have rendered. Proceeding to render-such judgment, it is considered that the judgment of the District Court be reversed, and that the plaintiff have and recover-of the defendant one hundred and seventy-five dollars, and’ costs in both courts.
Reversed and rendered..
