Pauska v. Daus

31 Tex. 67 | Tex. | 1868

Lindsay, J.

—This is a suit brought by the appellee against the a2Dpellant upon an open account, and upon which judgment was obtained in the court below on the verdict of the jury for the amount of the account and interest from the 1st of January succeeding the date of the assumpsit up to the finding of the jury. It ap2Dears that the plaintiff in the court below was a resident of .Matamoros, Mexico, where the liability was contracted.

On the trial of the cause in the district court four several exceptions were taken to the proceedings there had, and are relied upon as grounds for reversal in this court.

1. It is insisted that the court committed an error in overruling the objections of defendant to each and all of the jurors impanneled and sworn to try the cause, because no one of them was upon the list made by the county court of Harris county, as is required by law, and that each of said jurors was challenged for cause as he was presented.

Governments would be very remiss in their duties to their'citizens or subjects if they failed to make provision against the neglects and delinquencies of their agents or officers. Their laws almost universally prescribe the duties of public officers, and are usually directory and mandatory, and sometimes are enforced by penal sanctions. But to guard against the possible failure of public justice by reason of their negligence or malversations in office, all provident governments will make provii Ion for such defects of administrative justice. We think Texas has done so.

The objection taken in the exception is, that the names of the jurors were not on the jury-list. Hothing of proof is offered upon the subject, and every intendment should be indulged by the law in favor of the correct action of the court, until it is made clearly manifest that some error has been committed. But suppose it be true that none of the jurors who tried the ease were on the jury-list, that the county court, from neglect, nonfeasance, or even malversation in office, had failed to have such jury-list kept in their counties, it does not necessarily follow that the judicial administration is arrested by this subordinate branch of the government. The law in relation to the jury-list is simply mandatory and directory to the county court, and is not enforced by any penal sanctions. It. cannot be possible that, if the county court of any particular county should become refractory and contumacious, and absolutely refused to provide and keep a jury-list at all times in the county, the judicial determination of the rights of the people in that county must b.e brought to a stand-still to await the pleasure of its action. It would be a grave misfortune to any people if there should be such casus omissus in the legislation of their government. The legislature in this State has, perhaps, anticipated such a misfortune, and provided against it in article 3985 of Paschal’s Digest. If from any cause a jury has not been provided for, as is directed to be done by the county court, the district judge has power to direct the issuance of a venire facias to summon the requisite number of legally qualified men and proceed with the business of his court. For aught that appears in this case this course may have been pursued. At all events, everything will be presumed in favor of the regularity and legality of the action of the court until the contrary appears. The court may have neglected its duty in consequence of order Ho. 13, issued by the military commander of this district. Ho matter from what cause it arose, the presumption of law is that the judge of the court acted upon'the exigency and in accordance with the law. There is no fact in the record which shows that the jurors were not “ well qualified to serve as jurors.” Hence this assignment of, error cannot be considered as maintainable in this court.

2. It is also contended that the court further erred in permitting a deposition, purporting to be taken in Mexico by a vice commercial agent, to be read as evidence to the jury. Certainly what the witness deposed would be relevant and material testimony in the cause if the deposition were properly and legally taken, and would elucidate the matter in controversy between the parties. Hence the law has provided, that if there be objections “to the manner of taking depositions,” they must be in writing, and “notice given to the opposite counsel ” before the trial commences. [Paschal’s Dig., Art. 3742, Note 851.] The rule is founded upon the clearest principles of distributive justice. Its object was to afford a party an opportunity to correct such errors. When evidence did exist in favor of his right, that it should not be defeated by any technical informality in the deposition itself, nor by any casual mistake in the manner, the means, or the instrument or agent in taking it. This written objection and notice were not supplied in this case, therefore this assignment of error is untenable.

3. It is assigned as error, likewise, that the suit was upon an open account, created at Matamoros, Mexico, and that the court ruled that the plaintiff was entitled to interest upon it from the 1st day of January thereafter until paid at the rate of eight per centum per annum. Our statute of the 17th of December, 1861, does just exactly make such a provision. [Paschal’s Dig., Art. 3940, Note 930.] But it is insisted, as the contract was made in Mexico, that the lex loci contractus must govern as to the rate. This is true, if it had been alleged and proved by the pleader. But that seems not to have been done. Consequently the rule of decision of the lex fori must be applied. [Paschal’s Dig., Art., 3708, Note 834.] It must be recollected that it is by the comity of states or nations that foreigners are permitted to sue in the domestic forum. And by that same comity the rules of decision in the domestic forum are applied as well to foreigners as to citizens, unless the facts of the case are overruled and controlled by the public or general law. If the rate of interest in Mexico had been relied upon and pleaded in this cause, that general or public law, in contradistinction to the municipal law of the place of the remedy, would have been applicable to the case. But it was not so relied upon, and the rule of decision of the domestic forum was very properly adopted. (Paschal’s Dig., Art. 3940.)

4. There is a question mooted in the reasons filed for a new Mai and in the brief of the appellant which is not brought before this court in such a way as to require its adjudication. It is stated that some of the jury were colored men, and therefore it is inferred that they were not qualified electors. This is not a logical sequence from the premises. There are various shades of color among the human race in this country, and there is no legal technical signification to the phrase “ colored men ” which the courts are bound judicially to know. A man of pure Caucasian blood, in the freaks of nature and the idiosyncrasies of families, is sometimes impressed with a dye much deeper than falls to the common lot of his race. And it is supposed that if such a one was challenged for cause, upon the ground that his color, prima fade, disqualified him as a juryman, and the court should nevertheless admit him to be impanneled, we would not, for that cause alone, be warranted in interfering with the action of the court. If affidavits had been filed to sustain the motion for a new trial, showing that the jurors sworn were embraced within the inhibitions of the constitution and the laws, we would feel ourselves bound to meet the question, and to settle it according to our convictions of what the constitution and the laws enjoin. But this record presents no such state of case. After full consideration, therefore, of all the grounds presented in the record, we can find nothing to justify us in disturbing the verdict and judgment of the court below. The judgment is therefore

Aeeirmed.