Farley v. Deslonde

Watts, J. Com. App.

Upon the hearing of appellant’s application for a change of venue, as appears from the bill of exceptions, the court, over the objections of appellant, permitted witnesses to be called and examined by appellees, for the purpose of showing that the parties who made the supporting affidavits were men of limited acquaintance in the county, who had never held any office, and also permitted the appellees to examine the affiants themselves as to the extent and their means of and opportunities for obtaining information.

It is provided by article 1212, Devised Statutes, as follows: “ Where application for a change of venue is made in conformity to the. requirements of the preceding article, the same shall be granted unless it appear to the satisfaction of the judge, upon proof made before him, that the persons making the affidavit are not credible persons.”

That the proceeding had in this case, as shown by the bill of exceptions, was not in conformity with the above quoted section, is too clear for controversy. The only issue that can be presented and inquired into, when the application is in conformity with the statute, is that of the credibility of the persons making the affidavit. If the opposite party seeks to defeat an application when it complies with the statute, he can only do so by presenting and sustaining by evidence the issue that the affiants are not “ credible persons.”

Here, as appears from the record, the issue presented, and upon which the court acted in refusing to grant a change of venue, was as to the extent of the affiants’ knowledge concerning the matters embraced in the affidavit, and as to their means of information upon this subject.

It was held in Salinas v. Stillman, 25 Tex., 15, that under the old" law counter affidavits were not admissible upon an application for change of venue. There is nothing in the assertion of appellees, that, as the affidavits in support of the change of venue were made before a justice of the peace who did not sign the same as ex officio notary public, that therefore the application was correctly refused. This objection should have been taken in the court below, where, if defective, the jurat of the justice of the peace could have been amended. When made for the first time in this court, the objection is entitled to no consideration.

The court erred in hearing the evidence of the witnesses and the affiants as to their means of information, and in refusing to grant the change of venue upon the application as presented, and for this error the judgment ought to be reversed and the cause remanded.

There is no statement of the facts proved upon the trial below found in the record. True, there is found in the record what purports to be such statement, signed by the attorneys of the respective parties, but which was not approved and signed by the district judge, as required by statute. See R. S., art. 1377, etc.; Wampler v. Walker, 28 Tex., 598; Frost v. Frost, 45 Tex., 325.

In the absence of a statement of facts, it is not deemed necessary or proper to attempt a review of the numerous questions presented by appellant. From the record and briefs of counsel, the contest seems to be over the correct location of the twenty-two hundred and twenty-two acres of land claimed by appellees. The description of the land as “ the lower or south half of premium league Ho. 2 from the mouth of Elm creek,” when construed with reference to the subject matter, is not liable to the construction contended for by appellant. The term “from the mouth of Elm creek ” was given as a means of identifying the league, and not the particular half of that league intended to be conveyed. Its meaning is, that the lower or south half of that league, which would be Ho. 2, counting from the mouth of Elm creek, was intended to be conveyed; and not, as claimed, that the half conveyed must be that next to the mouth of Elm creek.

[Opinion adopted March 6, 1883.]

As to what are boundaries, is a question of law for the determination of the court; as to where the boundaries are upon the ground, is a question of fact to be determined from the evidence. The word lower is a relative term, and as used might signify Elm creek as the object of relation, or it might be intended as having relation to the sea coast; while the word south has a fixed signification, meaning the same thing at all times and under all circumstances. If, as claimed, Robertson conveyed to Smith the land by the same description as that given in Smith’s deed to Barrington, then it seems clear that he intended to convey the south half of the league.

That construction which is most consistent with the intention of the grantor, as gathered from the terms of the conveyance, should be accepted as the true one. The grantor hardly intended that the relative and uncertain term should control the other, with its fixed and definite signification.

Revebsed axd bemaxded.