Cook v. Land Co. , 6 Tex. Civ. App. 326 ( 1894 )

Plaintiffs in error, claiming to be the sole heirs of Thomas Cook, brought this suit against the Carroll Land and Cattle Company and other defendants in possession of the land sued for. Defendants in error, M.V. Cook and others, also claiming to be the sole heirs of said Thomas Cook, intervened and sought to recover the land against both plaintiffs and defendants.

They propounded interregatories to one of the plaintiffs, M.F. Cook, without notice to the other plaintiffs, upon which his deposition was taken. The plaintiffs moved to quash this deposition, because taken without notice, which motion was sustained by the court as to all the plaintiffs except M.F. Cook, who thereupon, through his attorney, took a nonsuit and entered a disclaimer. Upon the trial before the jury, the court permitted this deposition, over the objections of plaintiffs, to be read in evidence as between the intervenors and defendants, and in the charge instructed the jury that they would not consider it in determining whether or not plaintiffs were the true heirs of the Thomas Cook under whom both plaintiffs and intervenors claimed; but that if they should find that plaintiffs were not the heirs, then they might consider the testimony as against the defendants.

Plaintiffs in error complain not only of the introduction of this testimony, but also of the use made of it in argument by the counsel for intervenors. Coming as it did from one of the original plaintiffs, and contradicting or tending to contradict their most important witness, his brother, T.C. Cook, on the vital issue of heirship, the evidence was of the most damaging character.

The correctness of the theory upon which the testimony was admitted is not questioned. It is a well settled rule, that ordinarily testimony which is admissible for any purpose, or against any party to the suit, should not be excluded, but admitted with the proper limitation. The application of this rule, however, should not be made the pretext for gaining, indirectly, an undue advantage in a trial before a jury, in having testimony introduced of a character which must necessarily have its effect in determining an issue against a party having a right to object thereto, when it could serve no useful purpose against another party to the suit who is precluded from making such objection.

In this case the defendants were entirely without title, except such as the statute of limitation afforded. The real controversy, therefore, was between plaintiffs and intervenors. The testimony on the part of either plaintiffs or intervenors, in the absence of that of the other, was sufficient to warrant a recovery against defendants, except in so far as it might have been defeated by the statute of limitation.

If the jury had found against plaintiffs' claim of heirship without considering the testimony of M.F. Cook, they must necessarily have found on the same evidence in favor of that of intervenors. Any other verdict should have been set aside. It is idle, we think, to reply, that after the jury had found against the claim of the plaintiffs, this additional testimony was needed to enable intervenors, as against defendants, to defeat the defense of an outstanding title in plaintiffs. Intervenors could not, therefore, have been prejudiced had it been excluded.

It is always difficult, and frequently impossible, to control by the charge the insidious influence of an important fact after it has once found lodgment in the mind of the jury; and this is peculiarly so where it comes, as in this case, in the nature of an admission against interest from a brother to the witness mainly relied on, whose evidence it tends to discredit.

The testimony having been admitted ostensibly for one purpose only, counsel for intervenors, in the argument, over the objections of plaintiffs, read portions of said testimony and commented upon it at length as against the evidence offered by plaintiffs to support the issue of res adjudicata upon the question of heirship growing out of the previous suit and judgment between the same parties in Archer County; contending before the jury that that judgment had been obtained in favor of plaintiffs and against intervenors because the evidence of M.F. Cook had not been used on that trial, and that he did not have it there to show that T.C. Cook, whose testimony was relied on in this case to show descent from his uncle, Thomas Cook, never had such an uncle as Thomas Cook. This course of argument was permitted as within the ruling of the court with reference to said M.F. Cook's testimony, though as appears from the explanation appended to the bill of exceptions the counsel was instructed by the court to confine himself to the issue as between the intervenors and defendants; the court adding, in further explanation, that "the argument was made by counsel for intervenors for the purpose of, as he claimed, rebutting the plea of outstanding title in plaintiffs insisted on by defendants."

Our conclusion is, that under the peculiar facts of this case, the admission of this testimony, coupled with the use made of it in the argument, was calculated to deprive plaintiffs of a fair and impartial trial on the paramount issue of heirship involved; that its admission and the use made of it could have done no good, but only harm, and that a new trial should have been awarded.

One other important issue is raised by plaintiffs in error, that of res adjudicata. In addition to proving the record of the suit in Archer County for another tract of land granted to the heirs of the same Thomas Cook, plaintiffs in error proved by intervenors' attorney that he was present at the trial of that suit and represented the intervenors in this suit, who were part of the defendants in that suit; that the plaintiffs in that suit were the plaintiffs in this suit, and that in that suit the plaintiffs claimed under Thomas Cook in the same right and in the same way that they claim in this suit; that the intervenors in this suit, who were part of the defendants in that suit, claimed under the same Thomas Cook that plaintiffs claimed under, and in the same way and in the same rights that plaintiffs and intervenors claim in this suit; that in that suit intervenors and plaintiffs claimed as the heirs and descendants of Thomas Cook, who fell at Goliad in Captain Aaron B. King's company, under Fannin; and that the controversy there was just the same as it is here, as to whether the plaintiffs or intervenors were the true heirs and descendants of said Thomas Cook. It was also shown that this issue of fact as to heirship was directly put in issue by the pleadings and passed upon in the former suit.

The reply of intervenors to this ground of recovery was, that while the plaintiffs in that suit introduced the same evidence as in this, intervenors were forced into trial without their testimony, and did not have a fair and full hearing upon the question, and the court, in effect, submitted this theory of defense in the charge to the jury. It does appear that the trial in the former suit was upon the merits, and this, we think, was all that the law required. It was not shown that any appeal had been taken from this judgment, so as to bring it within the rule now established by the opinion in Railway v. Jackson, 85 Tex. 605 [85 Tex. 605], overruling or limiting Thompson v. Griffin,69 Tex. 142, which latter case was followed by us in Westmoreland v. Richardson, 2 Texas Civil Appeals, 175, and Railway v. Day, 3 Texas Civil Appeals, 353.

The difference between the effect of a judgment as a bar or estoppel against the prosecution of a second suit upon the same cause of action, and its effect as an estoppel in another suit between the same parties upon a different cause of action, is very clearly illustrated by our Federal Supreme Court in the case of Cromwell v. Sac County, 94 United States, 351.

It may be that the error in the charge submitting this issue to the jury would also require the judgment to be reversed, but we do not find it necessary to pass upon that question. Nothing else of importance is raised by the numerous assignments of error.

For the reasons stated, the judgment is reversed and the cause remanded for a new trial.

Reversed and remanded.