Cases argued and decided in the Supreme Court of Texas, during the latter part of the Tyler term, 1874, and the first part of the Galveston term, 1875. Volume 42. Page: 343
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1875.1 SWANN V. MUSCHKE. 343
Argument for the appellees.
In Drew v. Harrison, Judge Hemphill held that a plea
putting in issue a partnership not sworn to, should have been
regarded as a nullity by the court. (Lee v. Hamilton, 12
Texas, 417, etc.; Drew v. Harrison, Id., 282.)
If, therefore, such a plea is a nullity, of course no evidence
could be admitted in support of it.
In Kelly v. Kelly, the point raised was in many respects
similar to the question raised in this case. In that case defendant
pleaded a receipt. The plaintiff did not, by any
proper pleadings, impugn the receipt or put in issue its genuineness-in
other words, it was not sworn to. Justice Wheeler
reversed and remanded the case, because "the judge in his
' charge gave the jui'y to understand that they were at liberty
"to disregard a receipt which had not been properly attacked
' by the pleadings." (Kelly v. Kelly, 12 Texas R., 454.)
This is the error complained of in the case at bar. The plea
attacking the genuineness of the receipt in question, was not
sworn to, and yet the court permitted testimony to be introduced
under the plea; and in effect charged the jury, that
they might disregard the receipt, which had not been properly
attacked by the pleadings.
The decisions above referred to were made upon Article
741, Hartley's Digest. By a comparison of the articles in
Paschal and Hartley, it will be seen that'the language of the
two is precisely the same, and the construction given by the
court to the one will be equally applicable to the other.
(Hlartley's Digest, Article 741; Paschal's Digest, Article
Upon these authorities it is submitted, that the court erred
in admitting the testimony under the amended petition of
Winch & Shaffer, for appellees, cited Underwood v. Parrot,
2 Texas, 180; Wells v. Fairbank, 5 Texas, 582; Williams v.
Bailes, 9 Texas, 61; Drew v. Harrison, 12 Texas, 279; Andrewsv.
Jones, 36 Texas, 149; Parsons' Mercantile Law, 23;
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Texas. Supreme Court. Cases argued and decided in the Supreme Court of Texas, during the latter part of the Tyler term, 1874, and the first part of the Galveston term, 1875. Volume 42., book, 1881; St. Louis, Mo.. (texashistory.unt.edu/ark:/67531/metapth28531/m1/351/: accessed June 26, 2017), University of North Texas Libraries, The Portal to Texas History, texashistory.unt.edu; .