Wiley v. Shivel

84 S.W. 1100, 37 Tex. Civ. App. 605, 1905 Tex. App. LEXIS 568

• Court: Court of Appeals of Texas
• Decided: January 11, 1905
• Status: Published

Opinion

KEY, Associate Justice.

T. J. Wiley brought this suit against R. H. Shivel and G. A. Stewart. The plaintiff alleged in his petition that the residence of the defendants was unknown to him at the time of filing this suit, and made affidavit to that fact.

The defendants filed pleas in abatement, showing that they were residents of Grayson County at the time the suit was filed. These pleas were in proper form, and the trial court, after hearing the testimony, which authorized findings that the pleas were true and that the plaintiff knew the residence of the defendants, sustained the pleas in abatement and dismissed the suit. The plaintiff has appealed.

We sustain appellant’s first assignment of error complaining of the action of the court in not permitting him to testify concerning the efforts made by him to ascertain the residence of the defendants, and the information given him by the telephone operator, when he sought to communicate with them by telephone, to the effect that she was unable to get either of the defendants in Sherman, where they had formerly lived, for the reason that neither of them was there—that they were out of business in Sherman, and had left the city. It is true that this testimony was hearsay, but the rule excluding hearsay evidence is not absolute, and this character of testimony falls within a well-established exception to the rule. Whenever it devolves upon a party to show the efforts he has made to ascertain the residence or whereabouts of another person, it is permissible for him to show that he has made inquiries of other persons who might be expected to know, and the replies made by such persons.

On the other questions presented in the briefs, we rule against the appellant. For the error pointed out, the judgment is reversed and the cause remanded.

Reversed and remanded.