Garner v. Cutler , 28 Tex. 175 ( 1866 )

Moore, C. J.

—The appellee, Daniel M. Cutler, brought suit, February 5,1857, in the District Court of Leon county, against the appellant, Thomas H. Garner, for the recovery of an amount claimed to be unpaid on a judgment of the District Court of Houston county, rendered on the 29th day of October, 1847, in his favor, against said Garner. Among other defenses set up by him, the appellant, Garner, plead that said judgment had been fully paid, satisfied, and discharged. On the trial, appellee read in evidence, without objection, a copy of the judgment of the District Court of Houston county, on which his action was founded. From the transcript of the record presented by the appellee, it appears an execution issued on this judgment to the sheriff of Leon county, and was received by him on the 12th day of February, 1847, as execution No. 2. On the 7th of March, 1847, he levied the execution, without reference in the levy to any other execution, on a large amount of both real and personal property. But on the 4th day of April, 1848, he returned it unsatisfied, stating in his return that the property levied upon had been “sold under execution No. 1,” in his hands, “in favor of George Hatch.”

The judge instructed the jury that the transcript proved the indebtedness of the appellant. One of the grounds assigned for a reversal of the judgment is, that “the court erred in admitting the transcript of the judgment from. Houston county as evidence of indebtedness, because the execution and sheriff’s return thereon show a -levy and sale and misapplication of the proceeds by the sheriff of an amount that would more than satisfy said judgment.”

If there were any force in this objection, having been made for the first time in this court, it could be of no avail to the appellant. But had the objection been properly made in the District Court, we are clearly of opinion that there would still have been no ground for a reversal of the judgment.

It is unquestionably true, that a levy on personal property is, as a general rule, held prima fade evidence of satisfaction of the execution. This presumption, however, does not arise where possession of the property remains with the defendant in execution, and it is repelled whenever it is shown that the plaintiff has been prevented, either by the act of the defendant or by operation of law, from reaping the fruits of his levy.

When two or more executions against a party come to the hands of the sheriff at the same time, he is required by law to number them in their order of precedence. The execution in this case is indorsed Ho. 2. The plaintiff’s rights were therefore subordinate to those of the owner of execution Ho. 1. He could only claim its enforcement after the satisfaction of the first execution. Although it would have been more formal and strictly accurate for the sheriff to have shown in the indorsement on the execution that the levy was made subject to the prior levy (if made) of the first execution, his failure to do so would not change the rights of the parties.

It is, in fact, of no importance under which execution the levy and sale are made. The first execution is entitled to the first satisfaction. The return of a sheriff is to be regarded as true and correct, until the contrary is made to appear. Looking to this, (and it is all that was before the court,) there cannot be the slightest doubt that the execution was neither satisfied, in fact, nor should have been, from the money realized on this levy.

To sustain his main ground of defense, the appellant offered in evidence the depositions of George W. Roberts and William H. Smith, taken in Johnson county, and that of Hiram Brown, taken in Harris county. The appellee objected to these depositions going to the jury, on the ground that said witnesses were not residents of the counties in which their depositions were respectively taken, and in which they were described as residing in the interrogatories propounded to them by appellant. The judge before whom the case was pending refused to submit the question presented by this» objection to the jury, holding it, both as to the law and facts, addressed to the court. And, after hearing the evidence offered by the parties, he sustained the objection, and excluded the depositions from the jury. The ruling of the court on this question is complained of in a number of different assignments of error, but they all present substantially the same question, and, in fact, the only question in the case.

The taking of testimony by depositions is a departure from the common-law rules of evidence. It has, therefore, always been held, that the statutory rules permitting the same, must be fully and fairly, if not strictly, complied with, and if this be not done, such testimony unquestionably should be excluded.

The statute prescribes, that thé party desiring to take the deposition of a witness, whose testimony may be presented in this manner, shall give notice to the opposite party of the name and residence of the witness whose testimony he proposes to take. This requirement was without doubt intended to secure valuable and important rights to the party in whose behalf it is provided. Without, however, speculating upon these, it is sufficient to say, that if the .name and residence have not in fact been given, the deposition is not taken in manner and form as required by law, and should be excluded for this reason, if objection to it be properly made.

But how must such objection be made? And when its solution depends, not upon an inspection of the deposition and papers in the record, but upon extraneous testimony, by whom is it to be determined? The first of these questions is clearly and fully answered by the statute. If the deposition have been on file one day before the trial of the cause, the objection should be in writing, and notice thereof be given to the opposite party.

Although it is not expressly provided in the statute whether the second question suggested above shall be determined by the court or the jury, it seems quite evident, both on principle and authority, that it may in all cases, if indeed it should not be, by the court.

It presents a preliminary question to the introduction of the evidence, going to its competency or admissibility, and is therefore properly referable to the court, although it may involve a question of fact. It is said, in note 1 to Phil. on Ev., (Cowen & Hill,) that “these cases (citing authorities) hold that it is for the court alone to try and determine the question of competency, both as to the law and the fact, whenever it comes in place of a jury, and a new trial will not be granted where there is a fair conflict of evidence, even though the court may find against a slight preponderance. The rule here does not apply, that the court shall decide the law and the jury find the facts.”

It is insisted, however, that though questions which go to the form and manner of taking depositions, involving matters of fact, may be determined by the court, yet in this case the ruling of the court was erroneous, because it is based on testimony tending to prove that there were no such persons as named in appellant’s deposition; that they were fraudulently personated for the purpose of taking these depositions. It is therefore said, the question goes really to the credibility of the testimony, instead of its admissibility. If the testimony had gone to the jury, such objections, if supported by evidence, might be urged with the utmost propriety. But this in no way detracts from the right and duty of the court to determine whether the depositions were properly taken. Certainly evidence proving the pretended witnesses to be altogether fictitious personages, and that in fact no such individuals were in existence, would conclusively show they were not residents of a particularly named county. The objection presented by the bill of exceptions applies to a question properly addressed to the court. To this alone can we look.

The evidence offered, although circumstantial and opposed by countervailing testimony of appellant, is sufficient to justify and sustain the judgment. In such cases this court will not canvass it, or attempt to decide on which side it preponderates.

It has also been urged, that the court below could not act on the objection presented in the bill of exceptions, if held to present one going to the form and manner of taking the depositions, because, it is said, the objection to the depositions was not made in writing and notice thereof given before the commencement of the trial, but was made, ore terns, on the offer of the deposition in evidence to the jury. As we have already seen, this exception, if true, and it had been presented in the court below when it was asked to exclude the depositions, would be fatal to the judgment. If there be error, it is the duty of the appellant to place his finger upon it. He must present the facts, so-that the error of which he complains is manifest. He cannot ask or expect the court to seek for or find it by argument and deduction.

It is entirely consistent with everything contained in the bill of exceptions, that notice in writing may have been given to appellant of the objections to his depositions. If, however, this were not so, his exception is of a class which is waived if not presented in the court below. If it had been there made, the appellee might have shown, for aught we can say, that the notice was in fact given, or that appellant had consented to waive it. If he could silently suffer the court to act on the question, and afterwards avail himself of the exception, he would be able to avail himself of the judgment if in his favor, but if against him to reverse it. There being no error in the judgment, it is

Affirmed.