Andrews v. Beck , 23 Tex. 455 ( 1859 )

Roberts, J.

The possession of the negroes by Beck, was primá facie evidence of ownership, and authorised him to maintain this suit against the defendants below, who took the slaves out of his possession, unless they could establish some superior right in themselves.

This they failed to do. 1st. Because the writ of possession under which the defendants acted, was founded on a judgment in the District Court of Galveston county, which the court correctly declared to be a nullity. The judgment shows upon its face, by the agreement of counsel, inserted in it and made a part of it, that the judge of the first Judicial District was of counsel in the cause, and that, for that reason, the parties agreed to substitute an attorney of the court, to preside in the trial of the cause. The bill of exceptions purports to have been signed by Morris, the presiding judge, and not by his substitute, Merriman, the attorney. This does not show that the judge presided at the trial, but only serves to explain how the case was conducted under the agreement of substitution; and that, though the attorney tried the case, it was made to appear upon the papers, as if done by the judge. This judgment purports to have been rendered in 1842, when there was no provision of the constitution or law which authorised a substitution. It being manifest, from the record itself, that it was really rendered by. a person who was not a judge, it must be regarded as a nullity. (Wynns and Lawrence v. Underwood, 1 Texas Rep. 48.)

2d. Because the slaves “ Silva and her child,” named in the writ of possession, were not identified, by any evidence whatever, to be the slaves, “ Silva, Lewis, and James,”' which were taken from Beck’s possession, and sued for in this action.

Another point made, arises upon the following assignment of error, relating to the irregularity of the proceedings in this cause, to wit: “ The court erred in overruling defendants’ motion to dismiss this cause.”

The motion referred to is the following : “And now, at this term of the court, comes W. H. Johnson, as a friend of the court, and moves the court to strike this cause from the docket, for the want of jurisdiction. 1st. Because the change of venue was made from the county of Kaufman to Hunt, before the defendant Eagan, the only resident defendant of said county of Kaufman, had been served with process. 2d. Because after the change of venue from Kaufman to Hunt, an entry reinstating the case, nunc pro tunc (was made) in the county of Kaufman, without notice to the defendants. 3d. The case cannot be pending at one and the same time, in Kaufman and Hunt; two counties cannot have jurisdiction at one and the same time.

W. H. Johnson, friend of the court.”

• By a bill of exceptions, it appears, that, upon the calling of the cause for trial, this motion was overruled.

The defendants had appeared and pleaded to the merits, without any other exceptions having been filed, than those presented as friend of the court. Under these circumstances, the court did not err in overruling this motion. Admitting the full force of the exceptions taken in this motion, they were irregularities which the parties might waive, by pleading to the merits, and proceeding with the cause without objection. Having done so, it was not incumbent upon the court to interpose, merely to preserve the regularity of its proceedings. A motion made by an attorney, as a friend of the court, cannot be treated as the exception of the parties. And the court can do, on such a motion, only what it would do, if properly informed, without a motion. This results from the attitude of the person who assumes to make such a motion. (1 Burrill, 67; 1 Tomlin, 75.)

These are the questions in the case. Any further discussion of it, would result in a mere explanation of the record, which is somewhat confused. We are of opinion, that there is no substantial error, as the record is presented.

Judgment affirmed.