Jury v. Shearman

2 Posey 201, 1880 Tex. LEXIS 261

• Court: Texas Commission of Appeals
• Decided: February 7, 1880
• Status: Published

Opinion

Opinion.— The statute (art. 4969) provides that when “ the records and papers or any part thereof appertaining to the proceedings in any court in this state may have been or may hereafter be lost or destroyed,” . . . “ when (such) copies cannot be procured, then the contents of the records or papers so lost or destroyed may be- established by other proof at the trial of the cause, so that such loss or destruction shall work no injury or alteration in the rights of the parties concerned.”

Article 4970 provides the mode of proceeding: “Whenever any such loss . . . may occur, any party to the proceedings may file a motion in the cause, which shall be verified by oath, setting forth the loss or destruction, and, when certified copies cannot "be produced, the substance of the contents of the writings lost or destroyed, and the cause shall then proceed in the ordinary way.”

The term “ papers ” used in the caption and in the body of the act, and the more general term “ writings,” are extensive enough to include depositions on file in a cause pending. In this case certified copies of the depositions did not exist. Counsel, proceeding under the directions of the law, filed a motion in the cause, verified by his oath, setting forth the loss and destruction of the depositions and the substance of the contents of the writings lost. This being done, the statute directs that the cause “shall then proceed in the ordinary way.”

Upon the trial, plaintiff, having satisfied the conditions prescribed, was entitled to establish by proof the contents of the depositions so that the loss should work no injury.

We do not understand the statute to confer upon “substance of the lost document^ accompanying the motion to substitute, the dignity and force of the original by force of the mere- filing the same. The right is secured to proceed to prove, by parol, examined copy, or by any competent proof, the contents as evidence.

But the affidavit and accompanying substance of the depositions was not offered as a predicate for the proof by other testimony of the original, but as the substituted, depositions, and it was rejected by -the court because or “ upon' the ground that the depositions of - said witness could not be substituted,”

The ruling of the court excluding the documents offered as, or instead of, and supplying the lost original, was not in itself erroneous; but the further ruling at the time made, that the depositions could not be substituted, may have, and doubtless did, prevent further effort to prove the contents or produce evidence supplying the loss. .We do not think that counsel for- plaintiff, upon such announcement by the court, endangered the rights of his client by a failure again to formally tender the rejected papers as a predicate, when it bad been,already announced that it would be unavailing to secure the testimony. We may suppose that plaintiff could have produced evidence as to contents, etc,, had further investigation been allowed.

The result of the exclusion was to deprive the plaintiff of the testimony of the witness. Injury was suffered by the loss or destruction of the original in-that, though the statute may have been complied with, the right to prove the lost testimony of Cage was denied.

The second ground in'the assignment of error — the surprise at the ruling of the court; ignorance of the exceptions before his announcement, etc,,— we do not think adds materially to the strength of the appellant’s case.

It does not appear but that counsel for plaintiff knew of defendant’s objections to the proceedings to substitute the depositions before the trial was entered, having notice by the time he had.announced ready.

We think action upon the defendant’s exceptions to the testimony should have been invoked before going into the trial, and upon an adverse ruling plaintiff should have applied for a continuance to again obtain the depositions.

But as the plaintiff, by the ruling of the court, was deprived of a statutory right to the testimony upon which his case rested, we regard the ruling causing the injury an error such as to require a reversal of the case. The ruling held error was the decision.against the right to substitute, the effect of which was to deprive plaintiff of his testimony.