¶1The court in this case gave no charge of its own to the jury, but contented itself with giving and refusing such instructions as were asked by the respective parties.
¶2The main issues on which they were to pass, owing to this absence of a general charge from the court, were not fully and clearly set forth and explained to the jury," as they ought always to be in cases of this character.
¶3*581The instructions asked by each party are wanting in the signature of counsel to them. The statute (R. S., art. 1319), it is true, does not in so many words say that the instructions asked by each party shall be signed by the party asking them, or his counsel, but such is the obvious meaning of the law, and they should, in every instance, be-signed by the party or his counsel. In the absence of this precaution, it must be frequently difficult to determine by whom the instructions offered were prepared and tendered.
¶4In the ease before us, it is only by a reference to a bill of exceptions, contained in the record, that we learn that certain instructions were given that were asked by the appellee. This bill the judge might, it seems, have refused to sign, as the statute appears to provide that no bill of exceptions is required to bring up for review instructions that are given or refused and so marked by the judge. R. S., art. 1320.
¶5The assignments of error are eighteen in number, and some of these are subdivided into five or six minor heads. It is not deemed necessary to notice them in detail.
¶6All those assignments which bring in question the legality of the original appointment and qualification of appellant as executor, as well as those that bring in question the action of the chancery court in rendering a decree without first setting the cause down for hearing at a regular term of the court, and those that question the form of the decree and deny its finality, will be passed by. We regard the decree as one final in its character. Johnson v. Davis, 7 Tex., 173; Cannon v. Hemphill, 7 Tex., 184; Merle v. Andrews, 4 Tex., 200; Whiting v. Bank of U. S., 13 Pet., 523; Weatherford v. James, 2 Ala., 175; Forgay v. Conrad, 6 How. (U. S.), 202.
¶7The other matters maybe considered as perhaps errors or irregularities, but not of such a nature as to render the decree void, or subject to attack on this ground in this proceeding.
¶8It is well settled as the law of this state, that where an action in our courts is based on a judgment of a sister state, that the party can show by way of defense that he was never served with process, or that he never appeared either in person or by attorney. In short, he may show that he has never had his day in court. Norwood v. Cobb, 15 Tex., 500; S. C., 24 Tex., 551; Chunn v. Gray, 51 Tex., 114; Drinkard v. Ingram, 21 Tex., 650.
¶9In this case this defense was set up, and on this point the charge of the court cannot be said to be entirely incorrect. It did not, however, present this matter quite as fully and as clearly to the jury as ought to have been done. The court contented itself, it appears, *582with giving the views of the law on this point as suggested by the appellee, and possibly may also have given some instruction on the same subject asked by appellant. Of this matter, however, we are not sure. The court gave no instructions of its own on the point.
¶10Had, however, the charge been much more full and complete on this point than it was, we are of the opinion that the verdict of the jury finding that the appellant had authorized counsel to appear for him, if not wholly unsupported by the testimony, was contrary to the weight of evidence, and on this account, for the want of sufficient proof to support the verdict, a new trial should have been granted. We do not deem it proper, as there will be a new trial of the case, to discuss the evidence further than to say that the testimony in support of the verdict on this point was of a very unsatisfactory character.
¶11We are also of the opinion that the court committed an error in not excluding the fourth cross-interrogatory and answer of the witness Gholson. This witness was asked to detail to the jury the character and reputation of his deceased partner, Mr. Hooper, for honesty, truth, veracity and fair dealing; to which he responded by passing an encomium on the character of the deceased as a man possessed of all the virtues named above. The deceased was not a witness in the case, nor a.party to the suit. His reputation was not in issue. The fact that he was a person of good or bad character was not relevant to any inquiry in the case, and a proper objection being raised to the question and answer as irrelevant, the evidence should have been excluded. Gibson v. Amer. Mut. Life Ins. Co., 37 N. Y., 580; Stephen’s Digest of the Law of Evidence, Little, Brown & Co.’s edition, edited by Mr. J. Wilder May, p. 111; 1 Greenl. Ev., secs. 54, 55; Sheffill v. Van Deusen, 15 Gray, 485.
¶12If this case had been tiled by the court without a jury, this ruling might have been immaterial; but in view of the fact that the verdict was manifestly against the weight of evidence, it may fairly be inferred that it was the result, in part, of the failure of the court to exclude from the consideration of the jury this irrelevant testimony. It may be possible that the jury concluded from the fact that the court refused to exclude evidence as to the character of Mr. Hooper, that his reputation and standing in the community during his lifetime was an issue on which it was their duty to pass in deciding the case, and that their finding would affect that question.
¶13The judgment is reversed and the cause remanded.
¶14Reversed and remanded.
¶15[Opinion delivered June 8, 1883.]