Swift v. Trotti

| Tex. | Feb 5, 1880

Could, Associate Justice.

This suit was commenced on March 4,1874, to establish a claim against the estate of George Swift, authenticated before the clerk of the District Court of Hewton county on March 2, 1874, and ou the same day rejected by the administrator. The claim as presented was made an exhibit to the petition, and was in the form of an account for cash loaned on May 18, 1861, — S530.66, with interest at ten per cent, to date of presentation.

The petition alleged the loan at the date stated in the account, and alleged the promise of the intestate to pay on demand. An amended petition was filed on December 15, 1876, alleging the written promise of the intestate, George Swift, by letter dated May 18,1861, to pay ten per cent, interest so long as he had the use of the money, and averring that no time of payment was specified; but it was not alleged that the written promise had ever been authenticated, presented, or rejected.

The defense of limitation to the claim as presented was set up by exceptions and by answer, and the amended petition was excepted to specially that it did not allege that the claim therein referred to was authenticated and presented for allowance.

The court overruled the exceptions to the plaintiff’s pleadings, but, the cause being tried without a jury, after heaving the evidence, gave judgment in favor of the defendant. The plaintiff" brings the case here by writ of error.

The judgment was rendered on June 19, 1877, and the record shows that the term of court ended on that day. In the transcript we find a bill of exceptions not dated, but marked “filed June 20, 1877,” and a statement of facts certified to by the district judge on December 15,1877, and filed on that day. The judge’s certificate states that counsel failed to agree, but it docs not appear in the certificate or elsewhere that the statement of facts was made out after the term, by consent. On the contrary, counsel for appellee object in this court that the statement of facts, having been certified to after the term, constitutes no part of the record. Our opinion is, that the objection is well taken. Under the provisions of the Revised Code, the court may, by an order made during the term and entered of record, authorize the statement of facts to be made up and signed and filed in vacation, at any time not exceeding ten days after the adjournment of the term. (Rev. Code, art. 1879.) But the statute in force at the time of the trial requires the statement of facts to be made out during the term, and if an exception has been admitted by the decisions of this court where the parties have agreed of record that it may be done in vacation, there is no authority for extending tlie exception to a case like the present, where there is no evidence of consent.

It is questionable whether the bill of exceptions be not subject to the same objection—that it was not filed during the term. We have, however, not found it necessary to pass upon that question; for our opinion is, that the bill of exceptions shows no error fatal to the judgment.

The exclusion of a letter of the administratrix acknowledging the justness of the claim is stated in the bill of exceptions, but the letter itself, though referred to as being set out, does not appear, nor is it made to appear that the letter was in any W'ay admissible evidence. The bill of exceptions recites that “ the plaintiff" offered in evidence the claim here sued on, which was read. Defendants argued their oral special exceptions to the same, and to the manner of the authentication, because the affidavit to the same was made before the district clerk; whereupon the court ” (sustained) “ the exceptions; to which ruling the plaintiff excepts.”

It does not appear from this bill of exceptions that the court excluded the claim or its authentication, or made any other ruling of which appellant can complain. The court seems to have held—and we think erroneously—that in March, 1874, a district clerk was not an officer before whom a claim could be authenticated. At that time the District Court had jurisdiction of administrations and estates, and the clerk of the District Court being empowered to perform all the duties theretofore performed by county clerks, was an officer “ having a seal of office and generally authorized "to administer oaths.” (Paschal’s Dig., art. 5898; Const. of 1869-’70, art. 5, sec. 9; Con. Laws 13th Leg., sec. 12, p. 113.)

But this erroneous opinion of the court will not justify the reversal of a judgment which is manifestly correct. The plaintiff’s pleadings and exhibits show that the account sued on was barred by limitation, and fails to show that the written promise set out in the amended petition was authenticated or presented for allowance, and we think it clear that no other judgment than one in favor of the defendant could have been rendered. (Jones v. Underwood, 11 Tex., 118.)

If the conclusion reached be right, it is not material that. the court may have given a wrong reason. (Dean v. Crenshaw, 47 Tex., 10" court="Tex." date_filed="1877-07-01" href="https://app.midpage.ai/document/dean-v-crenshaw-4892879?utm_source=webapp" opinion_id="4892879">47 Tex., 10.) Under the general law of limitation, it is clear that an account created in 1861 was barred in 1874', no matter what the date of the debtor’s death or of the grant of letters on his estate. If the account was, as alleged in the petition, for money loaned, payable on demand, limitation commenced as soon as the period during which limitation was suspended had expired. (Cook v. Cook, 19 Tex., 434" court="Tex." date_filed="1857-07-01" href="https://app.midpage.ai/document/cook-v-cook-4888918?utm_source=webapp" opinion_id="4888918">19 Tex., 434.)

[Opinion delivered February 5, 1880.]

The bill of exceptions, if considered, discloses no error which, in the absence of a statement of facts, appears to have operated any injury to appellant. The j udgment is accordingly affirmed.

Affirmed.

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