Ballard v. Perry

Citations

• 28 Tex. 347

Syllabus

<p>Where, in a suit for land against several defendants, the causes of action presented against them were distinct and separate, and especially when one of the defendants claimed not only under a common source of title with his co-defendants, but also independently of them under the title asserted by the plaintiff, a severance should have been granted to such defendant upon his motion therefor.</p> <p>No objection on the score of time lies to a motion for a severance, although it was filed but a few days before the trial, and does not appear to have been acted on by the court until the cause was called for trial, there being nothing to indicate that the plaintiff could be prejudiced by the delay in the action on the motion.</p> <p>But although a severance was improperly refused, it may well be questioned whether the judgment should be reversed on that account alone, when it is not apparent that the refusal of the motion operated to the injury of the defendant who sought the severance.</p> <p>If the certificate of the officer taking depositions shows a substantial, though not a literal, compliance with the directions of the statute, the depositions should not be excluded on account of the certificate. No technical form of certificate is prescribed or required. (Paschal’s Dig., Art. 3728, Note 846.)</p> <p>There is no force in the objection to a deposition, that it was taken by an officer who was interested in the suit, when it is apparent that his interest was with, and not against, the party who interposed the objection. (Id.)</p> <p>A deposition should not be excluded simply on account of interlineations and erasures, when the context and connection in which they are placed clearly show that they were made at the time when the deposition was taken, and there being nothing indicative of a fraudulent alteration or tampering with the deposition. (Id.)</p> <p>No reason is perceived why a subscribing witness to an instrument is not competent to prove it for record, alth