Barker v. Johnson , 154 S.W. 609 ( 1913 )

It appeared that the witness John Bass sold the mules and wagons to J. E. Johnson, who was the son of F. M. Johnson and the defendant in the execution levied thereon. The consideration for the sale was $800, paid by J. E. Johnson to Bass, and the former's six promissory notes for $50 each in favor of the latter. There was testimony sufficient to support a finding that the $800 paid to Bass was money which belonged to the separate estate of the wife of said J. E. Johnson, but this feature of the case seems to have been ignored on the trial. Appellees claimed that J. E. Johnson, before the levy of the writ, to wit, on February 3, 1909, sold the mules and wagons to F. M. Johnson, who then paid him therefor $800 in cash, and assumed the payment of the notes to Bass. Over appellant's objection, the witness A. N. Kennedy was permitted to testify, at the instance of appellees, that a short time before the time the mules and wagons were levied on he heard F. M. Johnson declare that the mules were his property — that he had purchased them from J. E. Johnson. One of the grounds of the objection to the testimony was that it was within the inhibition of article 3690, Revised Statutes 1911, declaring that "in actions by or against executors, administrators or guardians, in which judgment may be rendered for or against them as such, neither party shall be allowed to testify against the others as to any transaction with or statement by the testator, intestate or ward, unless called to testify thereto by the opposite party; and the provisions of this article shall extend to and include all actions by or against the heirs or legal representatives of a decedent arising out of any transaction with such decedent" As a surety on F. M. Johnson's claim bond, the witness Kennedy was a party defendant to the judgment appellees sought to set aside, but he was not a party to the suit in which the testimony objected to was given. In Gilder v. City of Brenham, 67 Tex. 345,3 S.W. 309, it was held that the statute did not apply to one interested in the issue being tried, but who was not a party to the suit. The same ruling was made in Howard v. Galbraith, 30 S.W. 690. In Roberts v. Yarboro, 41 Tex. 449, which was a suit against a partnership, it was held that the plaintiff might testify to declarations made by a partner who died pending the suit; his representatives not having been made parties. In that case it was said that the inhibition of the statute should not be extended by implication to include persons not named in it. We think the court was justified by the rulings made in the cases cited in overruling the objection to the testimony based on the statute referred to. Another ground of the objection was that the testimony was hearsay and self-serving. Whether the objection should have been sustained on this ground or not depends on whether there was testimony showing F. M. Johnson to have been in possession of the property in question or not at the time he made the declaration; for, if he was in possession thereof, the declaration was admissible. Rollofson v. Nash, 75 Minn. 237,77 N.W. 954; Nodle v. Hawthorn, 107 Iowa 380, 77 N.W. 1062; Smiley v. Padgett, 123 Ga. 39, 50 S.E. 927; 3 Wig.Ev. § 1779. There is no direct testimony in the record showing F. M. Johnson then to have had possession of the property, nor who then had possession of same; nor have we been able to find in the record testimony justifying an inference that F. M. Johnson was then in possession of the property. We are inclined, therefore, to think it was error to admit the testimony objected to. But we do not think the error requires a reversal of the judgment. Other testimony in the case established, little short of conclusively, that J. E. Johnson sold the property to F. M. Johnson as claimed by appellees, and that F. M. Johnson owned same at the time it was levied upon. It is not at all likely, we think, that the finding of the jury would have been different had the declaration objected to been excluded as evidence. In this attitude of the record, it seems to us due regard for rule 62a for the government of Courts of Civil Appeals (149 S.W. x), adopted by the Supreme Court October 30, 1912, forbids a reversal of the case for the error specified. That rule, so far as it need be stated, is as follows: "No judgment shall be reversed on appeal and a new trial ordered in any cause on the ground that the trial court has committed an error of law in the course of the trial, unless the appellate court shall be of the opinion that the error complained of amounted to such a denial of the rights of the appellant as was reasonably calculated to cause and probably did cause the rendition of an improper judgment in the case."

Complaint is made of the refusal of the court to require the jury to find, as requested by appellant, whether F. M. Johnson from the time he made the claim bond and affidavit to the time of the rendition of the judgment by default against him by the use of due diligence could have employed an attorney to represent him in the trial of the right of property proceedings or not. It seems to us the issue appellant so sought to have the jury determine was covered by the first of the two issues submitted by the court to the jury, and that the finding that said F. M. Johnson "from the time he filed affidavit and bond to the time the default was taken against him" was not "reasonably in condition physically and mentally to have employed counsel or to have appeared and prosecuted his claim, or to have filed a motion for a new trial after the judgment was granted and before the adjournment of the term of court at which said default was taken," was a sufficient determination of it. Therefore we overrule the second and third assignments.

The next complaint is based on the refusal of the court to submit as an issue in the case a question as to whether the sale of the mules and wagons to F. M. Johnson was made by J. E. Johnson for the purpose of hindering, delaying, and defrauding his creditors or not. It is a sufficient answer to this complaint, we think, to say that such an issue was not made by either the pleadings or the testimony. Therefore the fourth and fifth assignments are overruled.

The court did not err in refusing to instruct the jury, as requested by appellant in his tenth special charge, that F. M. Johnson "was guilty of negligence in prosecuting the suit based on his claim affidavit and bond." That was a controverted question in the case. That the evidence to show negligence was not so conclusive as to have authorized such an instruction is indicated by the fact that the jury found, and their finding is not attacked as without support in the testimony, that F. M. Johnson was not in a condition physically and mentally either to have appeared in person and prosecuted his claim or to have employed counsel to do so for him. If that was his condition, he could not have been guilty of negligence in failing to prosecute his claim.

There are several other assignments, but we think they are without merit.

We are of the opinion that error which should operate to reverse the judgment has not been shown. Therefore it is affirmed.