Cases argued and decided in the Supreme Court of the State of Texas, during the latter part of the Galveston term, 1884, and embracing the greater part of the Austin term, 1884. Volume 61. Page: 34
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34 O'NEILL V. BROWN. [Galv. Term,
Syllabus.
WEST, ASSOCIATE JUSTICE.--The bill of exception taken to the
action of the court in refusing to allow the appellant Ben Bonart
to answer the question asked him, as to the purpose that induced
him to strike the appellee, does not show, as it ought to do (see
District Court Rules, No. 57), what was the objection of appellee to
the question.
In the state of the record, as we are not advised of the character
of the exception taken to the evidence, we cannot revise it. Nor
is the action of the court in this respect assigned as one of the
grounds on which the motion for new trial was based.
It appears, however, from the statement of facts, that the witness
did, as a matter of fact, without objection, detail fully and at considerable
length all that transpired just before and during the assault
complained of. As the matter is now presented to us, we cannot
say that the action of the court, in this respect, was erroneous or
prejudicial to the interests of the appellants.
The refusal of the court to give certain charges asked by the appellants,
and in laying down certain propositions for the consideration
and guidance of the jury, in its main charge, is also complained
of. While the charge of the court is not entirely unobjectionable,
and it would not have been improper to give some of the instructions
asked by the appellant that were not given, yet, taking the
charge as a whole, it gave the jury the law applicable to the case in
hand with sufficient clearness and certainty.
In giving the charges complained of, and in refusing to give the
instructions asked, no material error was committed.
Upon examining the whole case, we are of the opinion that the
record discloses no error that demands a reversal, and the judgment
is accordingly affirmed.
AFFIRMED.
[Opinion delivered February 1, 1884.]
JOHN O'NEILL V. ELLEN BROWN, ADMeX
(Case No. 4533.)
1. EVIDENCE-WITNESS -BURDEN OF PROOF.-One against whom a judgment
had been rendered on service of process by publication applied, under art.
1373, within proper time, for a new trial, and obtained it, but after the
former plaintiff's death,whose wife, as executrix, was made defendant. The
deceased plaintiff had testified on the former trial, and his evidence then
given was offered on the second trial. Held:
(1) The former evidence wasadmissible on the second trial, notwithstand
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Texas. Supreme Court. Cases argued and decided in the Supreme Court of the State of Texas, during the latter part of the Galveston term, 1884, and embracing the greater part of the Austin term, 1884. Volume 61., book, 1903; St. Louis, Mo.. (https://texashistory.unt.edu/ark:/67531/metapth28513/m1/50/: accessed April 25, 2024), University of North Texas Libraries, The Portal to Texas History, https://texashistory.unt.edu; .