English v. Miltenberger ( 1879 )

Gould, Associate Justice.

Giving to the words of the “Act to regulate the collection of accounts,” of April 2,1874, their literal and ordinary meaning, the effect of the statute is merely to make the sworn account evidence sufficient to establish it prima facie, and that only when the party sought to be charged fails to deny under oath the justice 'of such account. The final clause attempts to prescribe when this last affidavit must be filed, but does not otherwise affect the meaning or construction of the statute. Prima facie, the sworn account of the plaintiff, not denied under oath, is sufficiently established; but the statute uses no terms sufficient to preclude the defendant from rebutting this prima-facie case by competent evidence, although he may not have denied the account under oath. This, previous to the statute, the defeudant had an undoubted right to do, and that right should not be denied him, unless authority for the change is to be found in the law. The statute regulates the burden of proof, but does not, we think, undertake to otherwise change the rules of evidence or pleading. If further changes in the law are desirable for the protection of parties suing on accounts, or to accomplish some beneficial result, it is the province of the Legislature to make them.

The statute is comparatively recent, and we have no information justifying the conclusion that the general construction given it in the District Courts of the State has been that the defendant cannot disprove the plaintiff’s account, duly sworn to, unless he denies it under oath.

That question was not before the Court of Appeals in the case of Johnson v. Anderson, 2 Tex. Law Jour., 276, nor are any views expressed thereon in the opinion in this case. So far as we are advised, the question is one to be decided by us according to our views of the construction of the statute. Thus regarding it, the majority of the court is of opinion that the motion for rehearing be sustained, and that, the court below having erred in excluding evidence offered by defendant to disprove the account of plaintiffs, the judgment be reversed and the cause remanded. It is so ordered.

Reversed and remanded.

Justice Bonner dissented, and adhered to the original opinion.