Gillespie's Adm'r v. Redmond , 13 Tex. 9 ( 1854 )

Wheeler, J.

The errors assigned, which it is material to notice, bring in question the rulings of the Court. 1st. In sustaining the plaintiff’s motion to docket the cause in the names of the present parties, and overruling the defendant’s plea in abatement. 2nd. In receiving the statement of the plaintiff’s attorney in opposition to the motion to dismiss for a discontinuance, and overruling the motion. 3rd. In excluding the deposition of the witness Lane; and 4th, In admitting evidence of the rate of interest allowed by the law of Louisiana, and giving judgment therefor.

An inspection of the papers and proceedings, contained in the certified transcript of the record from the Washington Court, rendered it evident to the Court in Fayette, that the case transferred from the former to the latter Court was the identical case in which the change of venue was awarded. Though it had been variously and improperly entitled upon the docket, and in the citations and entries, and order for the change of venue, it was properly entitled and described in the pleadings of both plaintiff and defendant; and the identity of the pleadings with the case, in which the citations had issued and the several entries and order were made, was proved by the transcript, and certificate of the CÍerk of the Washington Court, which became the record of the case in the Court in Fayette. The plea in abatement was thus disproved by the record; and there manifestly was no error or impropriety in the docketing of the case, and conducting the subsequent proceedings in the names of the proper parties to the suit, so appearing by the pleadings and proceedings contained in the transcript of the record. It is insisted by the appellant that the failure to transfer and enter the cause upon the docket at the next ensuing Term of the Fayette Court was a discontinuance. It is true in the practice at Common Law, if the plaintiff leaves a chasm in the proceedings of his cause, as by not continuing the process regularly from day to day and Term to Term, the suit is discontinued, and the defendant is no longer bound to attend. It is similar to the suffering of a nonsuit by the plaintiff. In either case the plaintiff must bring his action anew. But the severity of this rule of the Common Law practice has been relaxed in our practice ; and though the plaintiff suffer, or even elect to take a nonsuit, still he is permitted to appeal to the equitable powers of the Court, and have the nonsuit set aside and the case reinstated, for cause. The equitable powers of the Court should be equally efficacious to reinstate a case where there has been a discontinuance. There is no difference in principle in the cases, and there can be no reason for denying the power in the one case which is admit" ted in the other. In both cases the application is addressed to the equitable powers of the Court, which are ample. Nor has the exercise of the power been confined in practice to cases of nonsuit. In Garrett v. Gaines (6 Tex. R. 435,) this Court lield that the District Court had power to reinstate a case upon the docket which had been improperly dismissed for want of prosecution at a former Term. (See Rogers v. Watrous, 8 Tex. R. 62.) The question is one of practice, to be decided upon considerations of policy and convenience, rather than matter of absolute principle. And there is no principle of law, obligatory upon the District Court, which will prevent that Court, in the exercise of its equitable powers, from reinstating a case for good cause, though there may have been a discontinuance. And if the Court may reinstate, of course they may refuse to strike from the docket, where the discontinuance has not been in consequence of the fault of the plaintiff, and a proper case is presented. Such a case, it will not be denied, was shown in opposition to the motion to dismiss.

But it is insisted that the attorney being security for costs, could not be released from his obligation so as to become a competent witness in the case. It is immaterial whether he was a competent witness or not to testify upon the trial of the cause. This interest did not render it incompetent for the Court to hear his statement in opposition to the motion to dismiss, as upon an application to reinstate. Such an application is addressed to the discretion of the Court, and in its support the Court might hear the affidavit of the party himself, and give it such weight as it was entitled to.

The deposition of the witness Lane was rightly excluded on the ground of interest. His liability upon his draft had been long since barred by limitation. His liability to the defendant, depended on the event of the suit. If the plaintiff failed to recover he conld not be held liable, and the effect of his testimony would have been to discharge him from his liability. He had an interest direct and certain in the event of the suitj and the record would be legal evidence for or against him in a suit thereafter instituted against him by the defendant. The errors assigned which we have considered, therefore, afford no ground for reversing the judgment.

But a further ground of error assigned is that the Court admitted evidence of the legal rate of interest of the State of Louisiana, and gave judgment upon the verdict for such interest, when there was no corresponding averment in the pleadings. Repeated decisions of this Court have settled beyond a question that this was error. (10 Tex. R. 350.) And for this error the judgment must be reversed and the cause remanded, unless the plaintiff shall think proper to remit the interest allowed in the verdict and judgment.

Reversed and remanded.