Garthwaite, Griffen & Co. v. Hart & Co. , 24 Tex. 314 ( 1859 )

Bell, J.

We are of opinion, that there is no error in the judgment of the District Court. The questions presented by the record, are the same as were presented, when the cause was before this court, at a former term, (22 Texas Rep. 230,) with the. single exception of the question raised by the bill of exceptions of the plaintiffs, in relation to the admissibility of the testimony, or what was sought to be used as the confessions of B. E. Sheegog.

The statute of 1858, (Oldham & White, Art. 481,) provides, that either party to a suit, may examine the opposing party, as a witness, either personally in court, or upon interrogatories, filed in the cause. The 5th section of the statute also provides, that when a party, who is interrogated, refuses to answer, or answers evasively, the interrogatories addressed to him shall be taken for confessed. In this case, the plaintiffs propounded written interrogatories to Sheegog, one of the judgment debtors; Sheegog declined to answer them, and, on the trial, they were offered by plaintiffs, who asked that they might be taken for confessed. The effect of this would have been, to have taken the questions propounded to Sheegog, as confessed against the interveners, Hart & Co.; for the only controversy, was between Garthwaite, Griffen & Co., and Hart & Co. To this controversy, Sheegog was not a party, in any such sense as would entitle the plaintiffs to have interrogatories addressed to him, taken for confessed, upon his refusal to answer them.

If Sheegog was a competent witness for the, plaintiffs, Garthwaite, Griffen & Co., against the intervenors, Hart & Co., (and we do not mean to say that he was not,) then his testimony should have been taken in the same manner as the testimony of any other witness; and upon his refusal to answer interrogatories addressed to him, the law furnishes the means to compel him to answer.

We think the verdict was fully sustained by the testimony, and that there is no error in the judgment. The judgment of the court below is therefore affirmed.

Judgment affirmed.