Johnson v. Ward

| Tex. | Jul 1, 1858

Hemphill, Ch. J.

It is not clear that the Justice erred in dismissing the suit. There had been no proceedings from August, 1853, to March, 1855, a sufficient period, perhaps, as a general rule to work a discontinuance. But admitting that such was not the effect in this cause, that regularity in proceedings before a Magistrate is not to be required, that on liquidated demands the Justice must give judgment on the merits, whether the-plaintiff attend or not, that the loss of the note and papers by the Justice and the change of Magistrates sufficiently account for the delay, yet there is believed to be an error on the trial before the District Court, which will require a reversal of the judgment. To sustain the action against the appellant Johnson, it must have been brought within sixty days after the endorsement of the note. (Hart. Dig. Art. 2529.) And the plaintiff, Ward, having sworn on his voir dire that he could'not prove the time of the endorsement by any one besides himself, except the said Johnson. The defendant's counsel proposed to cross-examine him as to his means of proving the facts by some one else. An objection to this was sustained by the Court on the ground that the statement of the witness could not be traversed.

This is believed to have been erroneous. A party is permitted to give evidence on behalf of himself, for the reason that he knows no one else who can testify to the fact. (Hart. Dig. Art. 715.) His oath of the want of knowledge will prima facie be sufficient to admit his testimony, but on examination it may appear that he was mistaken, that he. did know some one who could testify to the fact. His memory may be refreshed by inquiry, by suggestions from others, and facts which had escaped may again be brought within his recollections.

This was strikingly illustrated by the fact that the witness, after having given the testimony, on being inquired of by defendant’s counsel, if he did not get the note from Charles Payne, said that his memory being refreshed, he believed that he did. This suggestion would, perhaps, have been made on the cross-examination on the voir dire, and if so, the witness might have been at once excluded. There was also error in refusing the motion to exclude the testimony of the witness, after he had disclosed the name of another by whom he could prove the facts to which he had testified. For these errors judgment reversed and the cause remanded for a new trial.

Reversed and. remanded.