Clardy v. Callicoate , 24 Tex. 170 ( 1859 )

Roberts, J.

The questions which it will be necessary to notice, arise upon the bill of exceptions.

An objection was filed, to a part of the answer of the defendant, as irrelevant, and not responsive to the questions asked him. The court declined to decide the question, raised by the objection, because it had been made at a previous term of the court. From that fact, the court held it proper to presume, that the motion containing the objection, had been either determined, or waived. There has been no statute, or rule of practice cited, which authorizes such ruling, nor are we aware of any such.

A rigid examination and comparison of the questions and answers, is not necessary now. The last sentence, in the third answer, seems to be liable to the objection of irrelevancy; as it states the reason why his creditors pressed him, to be, that plaintiffs had closed his store, when the question sought to elicit facts, entirely antecedent to the closing of the store.

The main question in the case, arises upon the admission, in evidence, of what was, in effect, the opinion of the witnesses; that the defendant was injured by the sequestration, and had thereby sustained damage, in certain amounts. Without reciting all the objectionable questions and answers, it will suffice to refer to one answer. A witness stated, that the writ of sequestration “ stopped defendant’s business, caused him to suspend, and broke him up;” and, he thought, “ he was damaged not less than $10,000.” This answer involves the opinion of the witness, upon the matter in issue before the jury, to wit, that defendant had been damaged, to a large amount, and that damage resulted from the suing out the writ of sequestration. This was clearly an usurpation of the province of the jury. The explanation, afterwards given by the witness, that “his estimate was based on his knowledge of defendant’s character, as a business man, his business capacity, energy, and perseverance, and upon the fact, that it was the execution of the sequestration, which caused him to suspend business, and which broke him up,” does not relieve the answer from the objection. The business capacity of the defendant, his good credit before the writ was issued and executed, the amount of his liabilities, and the amount of his capital in business, the profits of such business, and then, after the execution of the writ, his want of credit, his being pressed by his creditors, his stopping his business, and the like, may have been important facts, to be submitted in proof, to the jury, to aid them in arriving at the conclusion, as to the amount of damage done to the defendant; and that such damage was the result of suing out the writ of sequestration, by the plaintiffs. Whether the suing out of the writ was justifiable, wrongful, or malicious and wrongful, was another question, dependent upon these, as well as other facts, in the transaction, which is not involved in the objection to the evidence, now under consideration. This is not a case coming under any exception to the general rule, that the witnesses must state facts, within their knowledge, and not conclusions, opinions, or deductions from facts, either disclosed, or not disclosed. The principles of law, here announced, have been too well settled, to require further elucidation. (Donnell v. Jones, 13 Alabama Rep. 510; Lincoln v. Saratoga Railroad Co., 23 Wend. 430; Herrick v. Lapham, 10 Johns. Rep. 281.)

For these errors, in the ruling of the court upon the evidence, the judgment must be reversed and the cause remanded.

Reversed and remanded.