Chapman v. Allen , 15 Tex. 278 ( 1855 )

Wheeler, J.

We are of opinion that the Court dicl not err in sustaining the plaintiffs’ exception to the deposition of the witness Nelson. The certificate of the officer, who was. commissioned to take the deposition, failed to conform in an essential particular, to the requirement of the statute. (Hart. Dig. Art. 727.) It is objected that notice of the exception was not given to the defendant’s counsel before the commencement of the trial. Rut this was not the ground of opposition to the exception in the Court below. It appears by the bill of exceptions, that “ the defendants resisted the objection on the ground " that it “ had only been filed a few minutes before the trial,” and that it should have been filed one entire day before ; but there is no suggestion that counsel had not notice of the exception before the trial commenced. Whether notice had been given as the Statute requires (Hart. Dig. Art. 733) was doubtless within the knowledge of counsel and the Court; and the specification of other grounds of objection to the action of the Court, without suggesting a want of timely notice of the exception to the deposition, must be deemed a tacit admission that such notice could not be objected consistently with the facts.

Whether the Court should have permitted the officer to amend his certificate after the trial had commenced, was a question addressed to the discretion of the Court under the circumstances. If it had been proposed before going into the trial, we think it should have been allowed, or if refused, it might have been good cause for a continuance. But if the objection to the admission of the depositions in evidence, had been then removed, the plaintiff might have thought proper to ask a continuance to obtain evidence to counteract the effect of the depositions. But seeing a valid objection to the reading of the depositions in evidence, he might well announce himself ready for trial, when otherwise he would have required other evidence to maintain the issue on his part. The parties having gone to trial, notwithstanding the exception to the depositions, and without proposing to obviate the objection beforehand, it was for the Court, in its discretion, to decide, whether it would be just to the opposite party, and proper under the circumstances, to arrest the progress of the trial, and delay the proceedings, to afford an opportunity to obviate a® objection to evidence, which the party had omitted to obviate at the proper time. And we cannot say that the Court erred in the exercise of its discretion in refusing the application. Parties must judge for themselves of their preparedness for trial, and having announced their readiness, they must abide the consequences of any want of preparation, which, by the use of proper diligence, they might have supplied.

But if the deposition had been admitted, it is not perceived that it could have benefitted the party. The testimony of the witness did not identify the property as that purchased with the money of the claimant; but was inconsistent with the deed under which she claimed. The presumption that property purchased during the marriage is community property is very cogent ; and can only be repelled by clear and conclusive proof, that it was with the individual money or property of one of "die partners. Where the property has not been preserved in specie or in kind, but, as in this case, has undergone mutations and changes, it is indispensable, to maintain its separate character, that it be clearly and indisputably traced and identified. (Love v. Robinson, 7 Tex. R. 6 ; Houston v. Curl, 8 Id. 239 ; Rose v. Houston, 11 Id. 324.) Had the evidence in question in this case been admitted, it was quite insufficient for that purpose.

The Court did not err in the instruction to the jury as to the effect of the deed from Howerton to the claimant. Property acquired by purchase during coverture, by either party, is presumed to be community property, whether the consideration was services rendered or money paid by either party. And this presumption can only be repelled by proof to the contrary ; of which there was none in the present case.

To the suggestion that there was no evidence that the property in question was the same conveyed by the deed of Howerton, it may suffice to say, if that be so, then there was no evidence whatever to sustain the plaintiff’s claim of title; and the instructions of the Court were immaterial. (Armstrong v. Lipscomb, 11 Tex. R. 649.)

The exception taken by the defendant in the Court below, that the bond for the trial of the right, of property was void because given by the wife without joining her husband, does not appear to have been acted on or brought to the notice of the Court. Its effect, if it had been sustained, would have been to dismiss the claimant’s suit for the trial of the right of property. But this she could not do, and thus defeat the plaintiff’s right under the levy, after having replevied and gotten possession of the property. To have permitted it would have been to sanction a manifest fraud upon the rights of the plaintiff in execution. But the objection to the validity of the bond was not tenable, in itself. The right to assert a claim to separate property, necessarily presupposes the power to do whatever is necessary to the effectual assertion and maintainance of the right. The giving of the bond, in a case like the present, is a necessary prerequisite to the assertion of the right. The power, therefore, must of necessity, exist; for to deny the power, would be to deny the right; and leave a married woman without a remedy for the reclamation of her property, where the husband failed or refused to join in the institution of the proceeding. Besides, the Court having taken cogizance of the claim of the wife, she is presumed to have its sanction, if that were necessary, for proceeding individually, without joining her husband. And having instituted the proceeding without joining her husband, or asking that he be joined, surely it is not for her now to object, and avoid the effect of her own lawful acts, on the ground that she was suffered to maintain the proceeding without joing him.

The objection that the Sheriff did not assess the several value of each article of property levied on or claimed, if well taken, should have been brought to the attention of the Court below, and there acted on; otherwise it must be deemed to have been waived. But it does not appear to have been insist - ed on below. The claimant in asserting her claim did not allege the separate value of the property. And there being . no issue between the parties upon that point, there was no necessity that the verdict and judgment should ascertain the separate value of the property. (Latham v. Selkirk, 11 Tex. R. 314 ; Wright v. Henderson, 12 Id. 43.) There is no error in the judgment, and it is affirmed.

Judgment affirmed.