McNeally v. Stroud

22 Tex. 229

• Court: Texas Supreme Court
• Decided: July 1, 1858
• Status: Published

Opinion

Wheeler, Ch. J.

Two grounds are relied on for reversing the judgment: first, the admission in evidence of the deed from Fisher and wife, to Boberts and others, of the 5th of June, 1837; secondly, the overruling of the motion for a new trial.

It is objected, that the deed was not properly authenticated for record, and consequently was not admissible in evidence, without proof of its execution. But to this it must be answered, that the objection was not taken at the trial, and comes now too late. The deed appears to have been admitted in evidence, without objection.

The ground on which it is insisted that a new trial ought to have been granted, is, the alleged surprise occasioned by the production, by the plaintiff, of the testimonio of the original title. But it is to be observed, that the plaintiff had given notice, by his petition, that his title was evidenced by this testimonio, to which he makes an express reference, for a more particular description of the land he claims. There could be no legal surprise, by tbe production of evidence of title, of which the plaintiff bad thus given notice. There is no error in tbe judgment, and it is affirmed.

Judgment affirmed.