Daugherty v. Harris

2 Posey 458

• Court: Texas Commission of Appeals
• Decided: July 1, 1882
• Docket: No. 4840
• Status: Published

Opinion

Opinion.—The application for change of venue was" contested upon the ground that those making the supporting affidavits were not credible persons. In the order granting the change of venue, it is stated that the affidavits in support of the application, as well as the counter-affidavits, were read and considered. But in the bill of exceptions taken to the ruling of the court upon that application, and ' which was duly allowed and signed by the presiding judge, it appears that plaintiff in error proposed, and offered to prove, that the affiants who made the supporting affidavits were not credible persons, which was refused, as stated in the bill, “ for the reason that it was not in the discretion of the court, but a matter of absolute legal right to the party presenting such affidavits for change of venue, and the court refused to hear the evidence upon the subject.”

The office of a bill of exceptions is to truly and correctly show the action or ruling of the court upon any particular question or matter, so that the action or ruling may be reviewed by the supreme court. Our statute provides that “ when application for a change of venue is made in conformity to the requirements of the preceding articles, the same shall be granted unless it appear to the satisfaction of the judge, upon proof made before him, that the persons making the affidavits are not credible persons. R. S., art. 1272; Farley v. Deslonde, 58 Tex., 589. In the case at bar a legal right was denied to plaintiff in error, and we cannot say no injury resulted therefrom. Therefore, we conclude that the judgment ought to be reversed, and the case be remanded with direction that the same be retrans- • ferred to the district court of Atascosa county.