Hughes v. Driver , 50 Tex. 175 ( 1878 )

Bonner, Associate Justice.

In this case we have not had the aid of brief or argument for appellant, and as a jury was waived, and hence no charge of the court, we are not advised by the record or otherwise what were the particular views of the judge presiding, either as to the question of law or the legal effect of the evidence adduced, further than is shown by the fact that judgment was rendered for the plaintiff below. Under these circumstances, our decision will not be as satisfactory as we would desire.

1. The first error assigned is that the court erred in overruling the general and special exceptions of defendant.

The pleadings of the plaintiff averred both the agency of Haney E. White to sell the land and the subsequent ratification on the part of John E. White.

The legal effect of this, if true, was to give the plaintiff the superior title to the land, and its truth being admitted by the exceptions, it was not error to overrule them.

2. The second error assigned was in permitting the Mc-Duffie judgment to be read in evidence by the plaintiff.

As neither this nor any other alleged error, as assigned, calls for a consideration of the legal effect of that judgment and the proceedings upon which it was based, as a ratification of the alleged sale by Haney E. White, we give no opinion upon this question, but simply hold, in answer to the error as assigned, that under the issues in the case the judgment objected to was a necessary link in plaintiff’s title, and as such it was not error in the court to admit it.

S. Heither are we prepared to say that the third alleged error—that the court permitted the order of sale issued on this judgment to be read in evidence when objected to because variant therefrom—is well taken.

The alleged variances which seem to be supported by the record are, that the order of sale required the money to be collected in gold, when the judgment called for dollars only; and that it required interest to be computed at the rate of ten per centum, when the judgment called for only eight per centum.

These were but irregularities, which, as a general rule, would have rendered the order of sale voidable, and not void, when collaterally attacked.

4. The fourth error assigned is that it was error to permit the service in the cases of Hughes and High v. White to be attacked.

The difficulty we have in the disposition of this alleged error is in the failure of the record to show the materiality of the evidence, being the original citations and the return of the sheriff, as affecting the final determination of the case.

The defendants having introduced in testimony the judgments, which were a part only of the record, by a familiar rule of evidence the plaintiff, in rebuttal, had the right to introduce the whole of it; and, in this view, the mere abstract fact that the citations were so introduced would not be error.

If the record had shown that said citations had been improperly introduced and were material as affecting the final disposition of the cause, then this would have been error for which the judgment should be reversed. But as this is not apparent from the record, in the view we take of it, and as it is not otherwise shown, we do not find in this or other rulings of the court such manifest error as would override the general presumption in favor of the correctness of the judgment below.

5. The remaining errors assigned are so general as not to call our attention to any points not before considered, and the judgment below is accordingly affirmed.

Judgment affirmed.