Maverick v. Salinas

15 Tex. 57 | Tex. | 1855

Wheeler, J.

The principal question presented by the record, which requires notice, is as to the propriety of the ruling of the Court, excluding the record of the judgment under which the defendant claimed to have derived title.

It was objected to the reading of the judgment in evidence, first, that it was fraudulently obtained ; second, that it was void for the want of jurisdiction—the defendant therein, it was said, not having had legal notice of the suit. It does not appear upon which of these grounds the Court excluded the evidence. If upon the first, it was manifestly erroneous, for the reason that the question of fraud in obtaining the judgment was a question depending upon evidence extrinsic of the judgment itself, and one which it was for the jury and not the Court to decide. If the Court excluded the judgment on the suggestion of the want of jurisdiction in the Court to render it, it was error, for the reason that the proceedings, anterior to the judgment, were not before the Court, (as appears by the record,) and it could not appear, therefore, that the suggestion was true. It is said in argument, that the service was by publication only ; but it does not so appear by the record before us. The defendant in this suit was only required to produce the judgment, to lay the foundation for the introduction of the execution and Sheriff’s deed, and the Court was not warranted in excluding it upon the mere suggestion of the plaintiff, of the want of legal service of process. If the suggestion was true, it should have been made to appear by bringing before the Court the proceedings anterior to the judgment, in order that the Court might judge for itself of the regularity and legality of the proceedings. No valid objection is perceived to the introduction of the defendant’s evidence, and we are of opinion, therefore, that the Court erred in excluding it from the jury.

The defendant, moreover, under his plea of the Statute of Limitations, appears to have made out a case in evidence, which brought him within the provision of the 16th section of the Statute, on which he relied. (Hart. Dig., Art. 2393.) But it is said, on behalf of the appellee, that the Statute did not run in his favor, because the plaintiff was absent from the State. Our Statute is unlike the English Statute of James, and the Statutes of some of the States, in that it contains no saving in favor of a plaintiff who is “beyond seas,” or without the limits of the State. The saving in our Statute is only as to the case of a defendant who is without the limits of the State. (Hart. Dig., Art. 2395 ; and see Angelí on Lim., 17, 2d edit., and ch. 19.) And it has never been held in this State that the absence of the plaintiff from the State would stay the running of the statute. The disability of being “beyond seas” is omitted in the Statute of Hew Jersey, and consequently is not recognized by the Courts of that State. (Id., p. 205,n.; 3 Green (N. J.) R. 171 ; 3 Horr. 262.)

Whether the disability of alien enemy will suspend the running of the Statute, it will be time enough to determine, when the question shall have been presented in a case requiring its adjudication. I apprehend, however, that the decisions of this Court will be found very strongly to support the conclusion that no saving or exception will be admitted by construction, to prevent'the running of the Statute, which is not expressed in it.

The judgment is reversed and the cause remanded.

Reversed and remanded.