52 Tex. 435 | Tex. | 1880
The statute (Rev. Stats., art. 2218, note) which permits parties to take the depositions of
Although, if not present, the deposition could be read, still his personal examination before the court and jury might be more satisfactory than the deposition. (Elliot v. Mitchell, 28 Tex., 112.)
Under the practice above indicated, the question as to which party had introduced the witness, which, under some circumstances, might be important, would not, as in this case, arise upon the trial.
2. The special charge asked by the defendant and given as added to by the court, gave to the negative presumption arising from the want of an entry in the fee-book of the sheriff, of a charge for service of citation on T. P. Collins, the same legal effect as the affirmative return on the citation itself, that he had been served.
In this we think there was error.
The failure of the fee-book to show a charge for service of citation on T. P. Collins, was more in the nature of a negative presumption or' inference of fact, legitimate in argument before the jury, than a presumption of law, proper, as such, to be given them in charge. (Johnson v. Timmons, 50 Tex., 535.)
3. There was also, in our opinion, error in the refusal of the court to reform the judgment so as to tax the estate of T. P. Collins with one-half the costs which had accrued to date of the former judgment of the court, imposing this as terms upon the granting of his motion for a new trial. This question had, by the former judgment, become res adjudicata.
The facts connected with the granting of the former motion for new trial, and the action of the court refusing to reform the judgment, being apparent of record, the reason which requires a bill of exceptions in certain cases did not apply in this.
4. In this case, on a former appeal, (42 Tex., 486,) the doctrine was recognized, that if the entry of a service of citation on T. P. Collins, one of the original defendants, and against whom judgment by default was taken, had been falsely and fraudulently procured by Burnett, a former party to the suit, then the affirmance by the Supreme Court of the original judgment, Collins not being a party to the appeal, would not, in this suit to revive the judgment, preclude the equitable defense, that in fact he had not been cited.
The record in the present case, as presented by briefs of counsel, fails to show any satisfactory evidence that there was such fraud as alleged, and upon which the former opinion of this court was based.
If it be admitted that, irrespective of the question of fraud, the record could be contradicted by parol, still we are of opinion that the evidence was not sufficient to overturn the presumption in favor of the recitals in the record of that judgment. The verdict of the jury in this particular was clearly against the evidence, and there was error in overruling the motion for a new trial on that ground.
Judgment reversed and cause remanded.
Reversed and remanded,
[Chief Justice Moore did not sit in this case.]
