Robson v. Jones

33 Tex. 324 | Tex. | 1870

Lindsay, J.

There are two grounds relied upon by the plaintiff in error in this case for a reversal of the judgment:

First—Error of the court in overruling the application of the plaintiff in error for a continuance.

Second—The rejection of an auditor’s report upon exceptions filed by the defendant in error.

In regard to the first alleged error, both from the language of the statutes and the practice of this court, to entitle a party to avail himself of it, it is necessary to tender a bill of exceptions to the ruling of the court upon such motion, before this court can consider it.

In relation to the other ground, it. may be justly questioned, under our system, in which a jury trial is constitutionally secured to parties in all cases, whether an auditor’s report, when objected to by either party, can be properly read upon the trial. The act of 1846; which authorizes the appointment of an auditor, to state an account between the parties, leaves the appointment and the action under it entirely in the discretion of the court. And the whole purpose of the act was only designed to aid and abbreviate the labors of the court in the investigation of complicated accounts between parties litigant. But the act cannot restrict the discretion of the judge in his ultimate determination of his method of conducting the trial. He may admit the report to be given in evidence to the jury, subject to impeachment from either party; or he may reject it altogether, and leave the parties to their constitutional right of a full investigation of their case before a jury. It is clear, however, if the court should admit an auditor’s report to be read to the jury, which had been unfairly and unjustly made, and which was calculated to mislead, or make a false impression upon the jury, it would be the duty of this court to revise and correct any error of the court below in such admission of the report, as evidence. But the rejection of the report in this case was clearly within the uncontrolled discretion of the court; and the trial was a full investigation of all the facts of the case by the jury, instead of by an auditor, and was only a concession of the constitutional rights of the parties in litigation. i

The jury seems fully to have inquired into the facts of the case, and rendered their verdict, under rulings of the court upon the law, to which no valid objections can be perceived, so far as the record shows. The judgment of the District Court is therefore affirmed.

Affirmed.