17 Tex. 138 | Tex. | 1856
This suit was brought by the defendants in error, to set aside a claim against the estate of I. W. Bur
This charge was excepted to at the time it was given, by the defendants, the plaintiffs in error. That the Court erred in its charge, there can be no doubt. First, the charge assumes that Hillebrant was required to assume the burthen of proof that his account was not barred when presented for allowance to the administrator, when the reverse is the law. It must be recollected that the suit was brought to set aside and annul a judgment more than ten years after it had been awarded. Now, the rule of law is well settled, that every presumption is in favor of the judgment, and he who attempts to impeach it, must assume the labor pi distinctly and clearly showing its vice. This is the rule where there has been no considerable lapse of time between the award of judgment and the suit to set it aside ; but this rule acquires a great deal more stringency, and with a good reason, too, if a great length of time is permitted to elapse before the judgment is impeached. Time, with its continual destructive changes, often removes the evidence by which facts could be proven, without leaving any vestiges that such fact had existed. Neither the administrator by whom the claim is allowed, nor the Judge approving the same, is required to perpetuate, in any way, the evidence upon which they acted ; and to call upon a creditor
But we believe that the error noticed is not the only one contained in the charge of the Court. There is error in excluding evidence from the jury, that ought to have been admitted. The circumstances before stated; the acknowledgment of Burton on the 29th of May, 1841, and the account made out, all in his own handwriting, ■ and this paper in the hands of Hillebrant, to whom it properly belonged, and for whom it was doubtless intended by Burton, if not furnishing full proof of the acknowledgment of the correctness of the account at that date, was certainly prima facie evidence, and ought to have been allowed to go to the jury; and the jury might have concluded that the account was acknowledged at that date, which would have taken the claim out of the limitation of two years. For these errors the judgment is reversed and the cause remanded.
Reversed and remanded.