Norton v. Mitchell

13 Tex. 47

• Court: Texas Supreme Court
• Decided: July 1, 1854
• Status: Published

Opinion

Lipscomb, J.

The most material point presented by the appellants’ counsel, is the power of Saneedo to grant lands in his official character as Political Chief of the Department of Bexar, in 1823. This question was the main one in Jones v. Garza, (11 Tex. R. 186.) In that case, on the law and the evidence presented by the record, we decided that the Political Chief had no such power; and if the same question was presented in this case, we would regard it as settled, being fully satisfied with its correctness; but the appellee denies that it can be raised in the case; that the record does not show that it was presented and decided in the Court below, and, consequently, it is not before this Court for revision. The record does not show any question reserved by bill of exceptions. The case was submitted to the Judge, without s jury, by consent, and the statement of facts is the only source from which we can know what was decided by the Court. In this, it is shown that when the grant from Saneedo was offered by the defendants as evidence of their title, 6‘ objected to by plaintiff; execution proved and read to the Court.” The record does not show the grounds of the objection to the evidence; and from what immediately follows the short notice of “ objected to by plaintiff,” it would seem that the objection was to the want of proof of the execution of the grant, and not to the power of the grantor, as the entry follows, “ execution proven and admitted.” It does not appear that there was any objection interposed, after the execution of the deed or grant was proven. When an objection to the admissibility of evidence is made, the grounds of objection should be distinctly stated, or there will be nothing to revise. If this rule is not observed, the revising Court would often be revising a question on evidence, that had not been raised and decided in the Court below. Again, whenever there is an objection made to evidence offered, the party offering should have an opportunity to remove the objection, or to supply Ms case with other evidence. He could not do this, if any general objection was allowed to be sufficient. (Fowler & Clepper v. Stonum, 6 Tex. R. 60; 11 Wheat. R. 199; Hubert v. Bartlett, 9 Tex. R. 97; Leach v. Millard, Id. 551; Davenport v. Lackie, 8 Id. 351.) The inference from the record being that no objection was raised to the power of the grantor, it cannot be revised in this Court.

There is another point upon which we would have felt some difficulty in reversing the judgment, even if the want of power in the grantor had been raised upon the record. The ease was taken from the jury, and the Judge passed as well upon the evidence, as upon the law, by consent, and if, upon the facts in evidence by oral testimony, that there was a special authority in the grantor to make the grant, that testimony having been received without objection, and nothing shown to impeach its credibility, had he decided, that the special authority was proven, it is difficult to perceive how we could have overruled his decision. (Wright v. Wright, 6 Tex. 3.) The judgment is affirmed.

Judgment affirmed.