McGill v. Delaplain , 1 Dallam 493 ( 1843 )

BAYLOR, Justice.

Rebecca Pincena while a feme sole filed her petition in the probate court for Bastrop County, alleging that A. C. Delaplain, administrator of William Brisbone, deceased, was indebted to her in the sum of $738.16, for and on account of work and labor performed by her for the said William Brisbone, deceased, in his lifetime, at his special instance and request, and for money had and received by him to her use, and so forth.

Upon an investigation of the matter in the probate court, she recovered a judgment and decree for the sum of $441.30 against Delaplain, administrator, as aforesaid. From which judgment and decree the said Delar plain appealed to the District Court for Bastrop County.

On the trial of the case there, the said Rebecca Pincena, who had then intermarried with Wm. H. McGill, proved by Andrew Mays, a witness, that there was a balance due the plaintiff for work and labor done and performed by the said Rebecca for the said Brisbone in his lifetime. They also produced in evidence an account, stated to be found among the papers of William Brisbone, deceased, containing a statement of moneys received by him as guardian for the said Rebecca upon an attempted settlement in the State of Mississippi, from whence the said Brisbone, deceased, removed to Texas, bringing with him the said Rebecca, who was then a minor. The foregoing evidence being submitted to the jury, the defendant by his counsel moved the court to nonsuit the plaintiff and dismiss the case; which motion was sustained by the court below, and judgment rendered accordingly against McGill and wife; to reverse which they prayed an appeal to this court, and object here, that after the introduction of testimony showing a strong presumption in favor of the plaintiff’s right to recover, it was not competent for the judge below to take the case from the jury and dismiss the petition or nonsuit the plaintiff on the ground of insufficiency of proof, etc.

We think the objection well taken. At a former term of this court, in the case of Guest v. Guest, we decided that the district court had no power to compel the party to take a nonsuit; we see no good reason to depart from this decision.

It has been argued by the counsel for the appellee that at the time the judgment of the court below was rendered, the civil law prevailed, and by that law, the judge below had the power to nonsuit the plaintiff. It is true where the civil laws prevails, there are cases to be found’ to that effect. But by our Constitution and laws we think the trial by jury was secured to the plaintiffs if they chose to persist in it. The judgment and decree of the court below must therefore- be set aside, annulled and reversed, and a new trial awarded in the court below.

Reversed and remanded.