Latham v. Selkirk , 11 Tex. 314 ( 1854 )

Lipscomb, J.

The first error, assigned by the appellant, is, That the Court erred in charging the jury, that they could find for the plaintiff, under the levy which was made by virtue of the execution of the plaintiff; for the indorsement on said ex-edition, shows that it was only the fourth ezecution, and its face shows that it was issued under a judgment which was rendered on the 11th day of September, A. D., 1843, which was near seven years before the issuance of said execution.

This assignment is not supported by the record. The Judge neither gave nor was requested to give, the charge contained, and set out, in the assignment. The record discloses no objection made or raised, on the trial, to the execution. Hence we cannot look at any of the defects supposed to be shown on its face.

The bill of exceptions shows that the counsel for Latham asked the Court to charge the jury, that it was necessary for the plaintiff to produce in evidence the judgment, by virtue of which the execution was issued, to entitle him to recover in this case; which charge the Judge refused to give. The refusal to give this charge is presented by the fifth assignment of errors. It is not believed that it was available, as in trials of the right of property. It is not usual to produce the judgment ; and all the plaintiff in execution can be required to prove, or produce on the trial of the issue, made upon the claim interposed, is the execution. The levy need not be proven ; because that is admitted by the claim of property, filed by the defendant. See Ala. R. 582; 2 Id. 310 ; 5 Port. R. 182; 6 Id. 447; 8 Id. 564. These authorities carry the doctrine further than we are disposed to go; in this, that they dispense with the necessity of producing the execution, and will not allow objections to be made to its validity. In carrying their doctrine so far, we cannot concur, but believe that the execution may be objected to, and even the judgment, for the reasons we have given, that it is only in the character of creditor, that the bill of sale can be impeached for fraud.

The claimant could have shown, in the defence, by certified copy of the judgment and by the execution, that there was no valid execution or judgment, to establish the plaintiff’s character as a creditor of Betts, as it was in that character only that he could be authorized to impeach the sale from Betts to Latham the claimant. See Bryant v. Kelton & Uzzell, 1 Tex. R. 433.

If the claimant believed that the execution was void, upon its face, he ought to have made the objection, on the trial. It is too late to raise it now. It not being challenged, the presumption is that it was valid, and that it was sued out upon the judgment of a Court of competent jurisdiction.

The second assignment is, that the Court erred in refusing to grant a new trial. We will only notice two grounds, upon which the motion was rested in the Court below, for a new trial. The first is, that the verdict was contrary to the evidence. This is a reason that is often assigned; and we have uniformly ruled, that where there was evidence tending to the proof of the conclusion to which the jury arrived, and not a very great weight of evidence clearly proving the contrary, we would not disturb the verdict. We have done so because it is the appropriate duty of the jury, to weigh the evidence; and again, that the Judge who presides on the trial, from seeing and hearing the witnesses, with the attendant circumstances at the time of the trial, is in possession of superior opportunities,to say whether the verdict was contrary to evidence, than the revising Court possibly can possess, deduced from the record.

The second ground in support of the motion, was newly discovered evidence. In support of this assignment, there are two affidavits, swearing to declarations or statements made by Betts, the defendant in the execution. Now, if such testimony could have been received at all, it would only have been cumulative, as Betts was sworn and testified in behalf of the claimant, without having his testimony impeached, by calling any witnesses for that purpose. Such testimony we have never regarded as affording sufficient grounds for a new trial. And further, it is not shown satisfactorily, why such testimony could not have been procured at the trial. The claimant was aware that the burthen of proof to sustain the claim, rested upon him, as the property levied on was in the possession of the defendant in the execution.

The third assignment considered under the previous one.

The fourth assignment is the refusal of the Court to permit the counsel for the claimant, to open and conclude the argument before the jury. From the form of the issue made up, the plaintiff had the affirmative; and there was no error in giving him the opening and conclusion. The issue might have been differently framed. It could have been so framed as to give the affirmative to the claimant of the property, and it would seem that where the property, levied upon by the execution, was, at the time of the levy, in the possession of the defendant in the execution, the issue, for the trial of the claim, should be so formed.

The fifth assignment has been considered in connection with the first.

We can perceive nothing available in the ground presented by the sixth assignment. The verdict is sufficiently certain, to dispose of the issue, and it was not necessary for the jury to assess the value of the property; in a trial instituted on the delivery bond, it might have been material to find the value of the property.

The seventh assignment is that the ten per cent, given is excessive, and not found as required by law. In a trial of the right of property, the Court is authorized, where the verdict is against the claim, to give ten per cent, damages. (See Hart. Dig. Art. 2818.) There is another provision of our statute, authorizing the jury in their verdict, to assess damages.-— (Hart. Dig. Art. 2814.) We believe the two provisions are not repugnant, and both can be sustained. If there has been any special damage, the jury could assess such special damage, independent of the first provision. In this case, none were assessed by the jury; but that fact interposed no legal objection to the power and right of the Court giving and awarding ten per cent., as was done.

The eighth assignment presents nothing for our consideration. The judgment is affirmed.

Judgment affirmed.