Robertson v. Ephraim

| Tex. | Jul 1, 1856

Hemphill, Ch. J.

Under Art. 688 (Sec. 29 of the Act to regulate proceedings in the District Court) defendants are required td file all pleas, whether of law or fact, at the same time, but in the due order of pleading ; and these, under Art. 691, are to be disposed of in the due order of pleading, under the direction of the Court. Whether an issue of fact on a plea in abatement, and one upon the merits, shall be submitted together to a jury, must be left in a great measure to judicial discretion. But when they present really distinct issues, the jury must be instructed to that effect, and that if they find for the defendant on matter pleaded which would abate the action, they need not consider or find upon the merits of the case. The Court can, in most cases, speedily determine whether the issue on the plea in abatement is important. If so, that issue should first be tried and found, before evidence is heard on the merits. If not, the jury after hearing all the evidence, can find on both issues, by separate verdicts if that be deemed of necessity or importance.

The question of domicil, on the plea of abatement, is certainly distinct from the merits, and if not tried separately, the jury should be instructed to distinguish between the evidence on the different issues, and to find them on the evidence which is relevant to each. There are some matters giving jurisdiction to special localities, the issues on which go as well to the abatement of the suit as to the merits. For instance " fraud” gives jurisdiction to the place where committed, but fraud may be the gist of the action, and the verdict for either party will be conclusive of both issues.

We are of opinion that there was no error in overruling the exceptions to the plea in abatement. There were no special causes of exception assigned, and it does not appear that the 'attention of the Court was directed to the fact that the plea only denied the domicil of defendant as alleged in the petition, but did not deny the trespass as averred in taking away the goods. It is questionable whether it should be considered here, not having been taken below. The case shows abundantly, that the question of domicil was much contested, but there is no evidence as to the manner in which defendant’s possession of the property was acquired, at least that such act was a breach of the peace. But the allegations as to the trespass are not such as would give jurisdiction to the county where committed, under the seventh exception, Art. 667, which is in effect, that where a crime or offence has been committed, for-which a civil action in damages may be commenced, suit may be instituted in the county where the offence or crime was committed or in the county of the defendant’s domicil. Under an exception nearly similar in the Act of 1836, establishing the jurisdiction, &c., of the District Court, Sec. 5, it was held in Illies v. Knight, 3 Tex. R. 315, that the acts com plained of must amount to a crime, to come with the exception, and that a trespass de bonis asportatis without a breach of the peace, was not crime in legal contemplation or punishable as such in law. This point has not been elaborated in argument, there being no brief for appellee, and will be left without further comment.

The second assignment has been disposed of in the first part of this Opinion, and we will notice the alleged error in requiring the plaintiff to go into the whole proof on the matters in abatement and on the merits, thus forcing him, in effect, to negative the matters set up in abatement, whereas the affirmative of the issue in abatement was upon the defendant. The petition stated the defendant to be a resident of Lavaca county,. This gave jurisdiction to the Court in that county. The plea averred residence of the defendant in Harris county. The presumption from the petition was that the Court had jurisdiction. This presumption could be rebutted by allegation and proof, and the defendant having alleged a sufficient cause to impeach the jurisdiction, was, it is believed, under the rules of evidence, bound to prove it. We have been referred to no previous decision of this Co urt on the subject, nor in fact to any other authority; but there seems to be much reason in holding that the burthen of proof must be on the defendant, who alleges facts which negative the jurisdiction.

We believe there was error also in refusing to admit the paper signed by the defendant, as an admission of the fact by defendant, as to his residence. His signature was proven, and an admission in a paper of such solemnity and importance should have some weight, certainly more than if made in loose and idle conversation.

We believe the non-suit should have been set aside, and a new trial granted. Judgment reversed and cause remanded.

Reversed and remanded.