O'Neill v. Brown

Citations

• 61 Tex. 34
• 1884 Tex. LEXIS 41

Syllabus

<p>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:</p> <p>(1) The former evidence was admissible on the second trial, notwithstanding defendant, who had been cited by publication, was not actually present in person or by counsel.</p> <p>(2) The evidence of the deceased plaintiff on the former trial being admissible, and the reason of the statute which excludes one party from testifying in regard to transactions with another party who is dead ceasing, the, adverse party, also, was a competent witness.</p> <p>(3) After the new trial was granted the burthen of proof did not rest as it would after new trial of a cause in which both parties were present. The new trial under the statute after judgment, on service by publication, is not alone to be a trial of the old cause of action, but a trial on the allegations of the petition for new trial and the answer thereto. In this new proceeding the former defendant becomes a quasi plaintiff; the burthen of proof rests on him, and he must show prima facie that the former judgment was wrong.</p> <p>2. Action — Partnership.— Ordinarily an action will not lie by one partner against another during the continuance of the partnership, to recover money alleged to have been contributed by the plaintiff to the firm, which should have been paid in by his copartner.</p> <p>3. Fact case.— See opinion for facts insufficient to authorize the judgment of the district court.</p>