Punderson v. Love , 3 Tex. 60 ( 1848 )

Opinion of the court delivered by

Mr. Justice Wheelee:

This suit was instituted by the appellant to try the title and recover of the appellee the possession of a tract of land.

The defendant first filed a general denial, and subsequently an “ amended answer,” in which he alleges that he entered, and is now settled upon a certain tract of land, in good faith, believing the same to be vacant, and has made valuable improvements thereon; that his entry was made in 1842, agreeably to law, but was not surveyed until 1848 in consequence of a vacancy in the office of county surveyor — concluded by making an exhibit of his field notes, and claiming the benefit of all laws enacted for the benefit of settlers in good faith.

The trial involved a controversy as to boundaries.

It appears from a bill of exceptions taken by the plaintiff, that the defendant offered in evidence a certificate marked X (not embraced in the transcript or sent up with the record), and also three several surveys made by the county surveyor, and proved by him and one of the chain carriers, which surveys are made a part of the bill of exceptions and marked E, Gr and H; to the introduction of which the plaintiff objected, but the court overruled the objection.

There was a verdict, a motion for a new trial overruled, and judgment for the defendant; from which the plaintiff appealed.

By order of the court the original papers, used on the trial of the cause, were sent up with the transcript of the record.

There is in the record no statement of facts, and hence, so much of the argument as proceeds upon the supposition that we have the evidence before us, and can revise the finding upon the merits, it will not be necessary particularly to notice. Nothing can be more clear than that, without a statement of all the evidence, we cannot undertake to investigate the merits and determine to whom the land in controversy belongs.

The only question which is presented for revision by the record is, as to the propriety of the ruling of the court, presented by the bill of exceptions. In this ruling we can perceive no error. The various surveys, admitted in evidence, appear to have been made by the proper officer, and to have been duly proved. They expressly relate to and tend to establish the boundaries of the land in controversy. Prima fade, therefore, they were admissible. They may have been rebutted and their force repelled by other evidence, but it is difficult to-perceive any legal ground upon which their admissibility could have been contested.

But if the certificate and field notes, embraced in the exceptions, did not, as separate links in the chain of evidence, upon their face, appear to have been admissible, yet, they may have been so connected and identified with other evidence not brought up in the record as to have been admissible and most material evidence in the case. The act of 1844, p. 70, sec. 5, seems to have contemplated that under the plea of “ not guilty”' in this action, the defendant should be at liberty to give in evidence special matter in his defense, and if, in any aspect ofthe case, these surveys could have been appropriate to his defense, they certainly were admissible. That they may have been so appropriate, either to rebut the plaintiff’s evidence of title to the particular lands in question, or to support some matter of defense relied on and available under the pleadings, is sufficiently apparent.

It is insisted that the court should have sustained the objection to the introduction of the paper marked A, because there were filed in the cause four other papers marked A. What relevancy or pertinency that fact could have to the plaintiff’s right to give in evidence any particular paper, or to adduce proof of any particular fact, it is, indeed, difficult-to perceive. That the paper may have been made an exhibit in the pleadings unnecessarily, was a matter wholly immaterial, and in no way affecting its admissibility in evidence, since the objection did not present any question of variance between the evidence and pleadings.

That the paper, designated1 in the bill of exceptions by the letter X, is not sent up in the transcript, cannot be ascribed to the fault of the appellee. Xor is it his fault that the court has seen fit, at the instance of the appellant, to send up some of the original papers in the cause. The appellee surely ought not to-be visited with all the costs of this proceeding, and the expense and vexation of another trial in consequence of the gratuitous acts of others in which he has not participated, and when he has himself committed no fault. It is the duty of the appellant, not of the appellee, to see that the record is properly brought up and presented here for revision.

But the presumption is, that a case was presented to the court below, which made it proper for the judge to make the order by which some of the original papers are before us. "We (understand the rule of this court, upon that subject, to be directory, and not so arbitrary and inflexible as to overhear every consideration affecting the justice and law of the case. We do not understand the law to be, that for every irregularity or error, in mere matters of form, not affecting in any way the rights of the parties, or the merits of the controversy, the j udgment is of necessity to be reversed and annulled. Until the contrary appear, we must presume the court below acted in all things rightly, and we presume the fact to be, that the original papers were sent up at the instance of the appellant, and with the assent of the opposite party. Such was understood to' be the statement and admission of counsel, when the case was at bar, and we know of no law which will authorize a reversal of the judgment for this cause. The parties have acquiesced in the propriety of the order, bTo objection to it has been made in either court, but on the contrary, the counsel on both sides concur in regaining it as entirely proper under the circumstances of this case, and owing to the difficulty, if not impossibility, of obtaining correct transcripts of some of the field notes and surveys in evidence upon the trial.

It does not seem to have occurred to the appellant’s counsel, that this order, made at their instance, can be invoked by them as a ground for reversing the judgment; and it would indeed be novel for the court, mero motu, to reverse the judgment for this cause when the order was thus confessedly made at the instance of the appellant, and when the parties both concurred, and still acquiesce, in its entire propriety.

We have inspected the record and find no error, nothing on which to predicate a reversal of the judgment. If the plaintiff has rights which he has been so unfortunate as to have failéd to present in this record, he will still have the period prescribed by the statute, within which to bring a new action; and as he, being the appellant, is the party alone responsible for the absence of a more intelligible and perfect record, we do not conceive that any injustice will be done him by an affirmance of the judgment.

It is the opinion of the court that the judgment be affirmed.