Morrison v. Bean , 25 Tex. 442 ( 1860 )

Bell, J.

—We are of opinion that there is no error in the judgment.

It is contended by the counsel for the plaintiff in error, that the transcript of the proceedings in the injunction suit of Morrison v. Wintz ought to have been admitted in evidence, for the purpose of showing when the injunction was granted, and as the necessary foundation of further proof "by the defendants below. When the transcript of the injunction suit was offered in evidence by the defendants, the plaintiff had closed his testimony, and it was already shown to the court that the note and mortgage sued on were assigned to the plaintiff before the injunction was granted, and that the plaintiff did not know, at the time of the assignment of the note and mortgage to him, that any injunction had been granted at the suit of Morrison against Wintz. The assignment of the note and mortgage purported to have been made on the 18th day of August, 1854, and the assignment of the mortgage appeared to have been acknowledged before an officer on the 1st day of September, 1854. The injunction in the case of Morrison v. Wintz was granted by Judge Devine on the 1st day of ¡November, 1854. Under these circumstances, the granting of the injunction interposed no obstacle to a recovery by the plaintiff, Bean, in this suit. And it was within the discretion of the court to refuse to permit the transcript of the injunction proceedings to be read, until the defendants made proof that the assignment of the note and mortgage by Wintz to Bean was in truth subsequent to the 1st of November, 1854, when the injunction in the case of Morrison v. Wintz was granted. Without such evidence, the injunction could avail nothing, and the court might well refuse to hear the evidence showing the grant of the injunction, until the plaintiff’s evidence as to the time when the assignment of the note and mortgage was made to him was rebutted.

It was not error in the court to refuse to allow the interrogatories to the plaintiff, filed on the 11th April, 1859, to be taken for confessed against him, because they were not answered. These interrogatories were filed during the progress of the suit, after the original answer was filed, and it does not appear that the plaintiff had any notice of them. They were filed only a few days before final judgment.

The judgment of the court below is

Affirmed.