Withee v. Fearing, 23 Tex. 503

Withee v. Fearing

23 Tex. 503 | Tex. | 1859

Bell, J.

We are of opinion, that there is no error in the judgment of the court below. It was not necessary, that the plaintiffs below should file their own affidavit of the loss of the note, on which the suit is founded, when they wTere able to prove the loss by a third person, in whose possession the note had been placed, and from whose possession it was alleged to have been lost.

We are of opinion, that the court did not err in ruling out the transcript of the proceedings in the attachment suit, in the District Court of New Orleans. The transcript was not offered to prove, that such a suit had been instituted in the District Court of New Orleans; nor was it offered for any definite purpose. The bill of exceptions states, that it was offered for the purpose of showing any fact, or circumstance, from which the jurors might infer, that the attachment was wrongfully or maliciously sued out. There were no allegations in the defendant’s plea, which pointed out any portion of the proceedings in the attachment suit in New Orleans, as shown by the transcript, as indicating wherein those proceedings were in violation of the laws of Louisiana. We do not think the court below was under any obligation to examine the transcript, to see what its contents might be; or to ascertain whether, or not, it contained anything pertinent to the issue before the court; nor could the court be required to permit such a paper to be read in evidence, unless it was made distinctly to appear, that its contents were pertinent to the issues before the court. Such a mode of introducing voluminous documents in evidence, for any purpose for which any portion of their contents may happen to be admissible, is not proper. An attorney may be excused for trusting to the chapter of accidents, when he can do no better; but he ought never to complain of the court, for declining to make decisions upon the same principle.

We think that the evidence of the damage sustained by the defendant below, in consequence of the suing out of the attachment, *507was properly excluded from the consideration of the jury. No proper predicate was laid for the introduction of such evidence. It was incumbent upon the defendant, to show that the attachment of which he complained, was maliciously or wrongfully sued out, before evidence of the damage that he had sustained, in consequence of it, could have any legal significance. The court, in its discretion, may permit a party to introduce evidence irregularly, but it is a practice productive of frequent embarassment; and sometimes results in a useless consumption of time. A court is sometimes obliged to rule out evidence, in the introduction of. which, considerable time has been consumed, and by the introduction of which erroneous impressions may be made on the minds of the jury, because the party fails to lay the necessary foundation for such testimony. It is a good general rule, in the introduction of testimony, as well as in architecture, that the base should be laid, before the superstructure is reared. To permit a party, therefore, to introduce his evidence in the way that best suits himself, is a privilege that the court grants only in the exercise of a sound discretion.

In the case before us, the only evidence of the wrongful suing out of the attachment, that had been offered, had already been excluded by the court; and the court, under such circumstances, might well require that the defendant should lay a proper foundation for the evidence of the damages sustained, before proceeding to show what the damages were.

I think it proper to say, for myself, that I am not prepared to assent to the proposition announced in the case of Wiley v. Traiwick, 14 Texas Rep. 662, where it was held, that damages growing out of another suit, in another state, may be pleaded in reconvention, in a suit in this state. The judgment of the court below is affirmed.

Judgment affirmed.