Miller v. Sturm

36 Tex. 291 | Tex. | 1872

Ogden, J.

We think there was no error in the judgment of the court in this case which will authorize a reversal - of the same. The statute, Article 5312, Paschal’s Digest, provides that an issue in cases like the one at bar should be made up under the direction of the court, and the case shall then be tried by a jury as in other cases. The issue provided for has reference more particularly to the question whether the property is subject to the execution, and to the character in which each party shall stand before the court and jury, and which shall have the burden of proof; and prescribes that “ in all “ cases where the property levied upon was taken from the pos- “ session of the claimant, then the burden of proof shall be “ upon the plaintiff in the original writ of execution; but if “ the property so claimed was taken from the possession of any “ other person than such claimant, then the burden of proof “ shall be upon such claimant.”

It is sometimes difficult to determine from whom the property was taken under the writ, and in such cases the court is to direct which party shall assume the affirmative and the burden of proof. But in this case there could be no dispute of that character, and but little for the court to direct excepting as in ordinary cases. There had been one judgment by default, as the claimant had failed to prosecute his claim, and at a subsequent term of the court that judgment was set aside and a new trial awarded. • It may be gravely doubted whether that judgment would stand the scrutiny of a legal investigation. But as the subsequent trial operated in effect to re-establish the first judgment, and as no effort is now made to disturb the former rulings of the court, we do not deem it necessary now to correct an error which would result in no practical good.

On the 16th of August, 1871, a judgment was again rendered by default against the plaintiff in error, and from that judgment the claimant, Miller, has prosecuted this writ of error, and now complains of the ruling of the court in refusing to allow him to file his plea joining issue-with the plaintiff in the original execution. It appears from the certificate of the court attached to a bill of exceptions, that after the cause was called in regular order, and both parties announced themselves ready for trial, and a motion had been made for another judgment by default, then the claimant asked leave to prepare and file a plea joining-issue, which was refused by the court, and we think very properly. After parties have announced ready for trial, they have no longer any abstract right to amend, or to file any new pleadings. But more especially have they at no time a right to hold the business of the court in suspense, for them to prepare pleadings of any character which might have been prepared out of court.

We see no error in the judgment of the District Court, and it is affirmed.

Affirmed.