Hardin v. Blackshear

West, Associate Justice.

The facts alleged constitute a good cause of action, and the court did not err in overruling the general demurrer and special exceptions to the original petition. Nor did the court err, under the facts presented, in declining to strike the case from the jury docket. The failure to pay the jury fee at once, as should always be done, makes it the duty of the court to decline to grant the party the privilege of a jury for the trial of his case. B. S., art. 3066. But there must be in this, as in many other like questions of practice arising in the progress of a trial, some discretion allowed the district court in disposing of such matters.

Where, as in this case, the ruling of the court in this respect worked no injury to the party complaining, and appears to have been, under the circumstances, a proper exercise of that discretion, the action of the court will not be disturbed.

Neither did the court err in excluding that part of the evidence of the witness J. S. Witherspoon, to the introduction- of which an objection was interposed. It is not claimed that it was offered for the purpose of contradicting the witness, and even for that purpose its admissibility would have been doubtful, and so far as it was sought by it, in any way whatever, to affect the right of the appellee to the property in suit, it was immaterial and irrelevant.

Nor were the original papers of the district court of Leon county, in the suit there pending of the Witherspoon brothers against the appellant, admissible in evidence in this suit as against the appellee. She could not be bound or concluded by anything said or done in that suit, by any of the parties, as she was a stranger to it.

The record does not explain how or in what manner the original papers and records of the district' court of Leon county came to be produced and offered in evidence in the district court of Anderson county. The clerk of the district court of Leon county is the proper and lawful custodian of those records. There is no pretense tiiat he was present in court or had them in his official custody when they were offered in evidence.

Where the original papers in a judicial proceeding, sought to be introduced, are a part of the official records of the court where the case is being tried, or are brought into open court from the county court of the same county, in the custody of the clerk of that court, it has been held, under such circumstances, such original papers are admissible in evidence. Wallis v. Beauchamp, 15 Tex., 305; House v. House, 16 Tex., 601. In this connection, see, also, Styles v. Grey, 10 Tex., 503.

Where, however, the supposed original papers of other and distant courts of record of this state are found in the hands of private individuals, and from this source are offered in evidence, a different question is presented.

“Necessity,” says Chief Justice Hemphill, “requires the records of other courts to be proved by transcripts. The records themselves must remain in the proper office and in the custody of their keeper, and transcripts or copies only can be used for their proof elsewhere.” 15 Tex., 305.

There is no error in the judgment, and it is affirmed.

Affirmed.

[Opinion delivered October 9, 1883.]