contract by defendant, and no notice was given | appellant and Hodges. The ground of obto defendant that plaintiff was seeking to recov- jection is that no notice to produce the origer on such a contract; that plaintiff's suit was inal had been given to appellant. While not brought upon a written contract, but all of the pleadings filed in the case, including the technically this is a good objection, we think, citation served upon defendant, showed that under the circumstances of this case, it was plaintiff was seeking to recover on an open ac- harmless and had no influence with the jury. count for debt and not upon a written contract; The appellant swore to having given appellee that the evidence showed entirely new cause of action from the one brought in the justice a written contract for the payment of $200 court. That defendant had no notice that plain- if appellee effected a compromise of a suit betiff was seeking to recover on a written con- tween Hodges and appellant, but containing tract such as testified to, and had no notice that plaintiff claimed to have lost said contract, terms different from those sworn to by apno affidavit or written pleading having been filed pellee, one of which was as to the place of putting defendant upon notice of the contents payment of the contract. The letter does of said instrument, and that said instrument not mention the terms of the contract; had been lost, as is required by law. Defendant further objected to said testimony for the therefore its admission was harmless. reason that, if in truth and in fact such a contract had been executed, it showed upon its face that there was no consideration for the execution of same." Under the foregoing assignment appellant presents two propositions as follows: (1) "There was no pleading by the plaintiff alleging a written contract by defendant to pay in Dallas county, and the evidence objected to was therefore not admissible." (2) "There being no written amendment to plaintiff's pleadings filed in the county court of Dallas county at law, setting forth the new matter relied on, that defendant had executed a written promise to pay plaintiff in Dallas county, the evidence objected to was not authorized by the pleading, and was therefore improperly admitted over defendant's objection." [1, 2] Relative to the first proposition, we will say that under our statute written pleadings are not required in the justice court, and the same rule applies on an appeal to the county court. Such being the case, it was not necessary for appellee to plead whether his claim was evidenced by a written instrument or by parol. The judgment in the justice court shows that it was founded on a written contract, which shows that it must have been pleaded in that court. We conclude that appellee had notice of the contract sued on in the county court. Briggs-Weaver Co. v. Pratt, 184 S. W. 732. [3, 4] As to the second proposition under this assignment, we think the testimony was properly admitted. The writing was lost. Its existence was denied by appellant, which raised the issue of it ever having existed and its contents. The testimony objected to was pertinent as a circumstance to show whether or not it did exist, and while the witness could not say that the signature was that of appellant, and could not identify it as having been written by him, it was for the jury to determine that fact. In other words, the evidence was conpetent, and the weight to be given to it is the only matter to be considered by the jury. [6] The third assignment complains of the court's refusal to admit the testimony of witness A. H. Carrigan to the effect that appellant had nothing to do with effecting a compromise of the suit between the Ellerds and appellee, and that he had nothing whatever to do with the settlement. The witness Carrigan was permitted to testify at length as to how the compromise and settlement was made; that he, as attorney for the Ellerds, and F. M. Etheridge, as attorney for Hodges, effected the settlement; that F. M. Etheridge wrote him a letter suggesting a compromise; that they took up the matter and effected a compromise. This testimony excludes the idea of appellant being present or assisting in the settlement; therefore the exclusion of the evidence complained of was harmless and was not prejudicial to appel lant. [7] The fourth assignment complains of the court's action in failing to submit to the jury the following issue: "Did the defendant J. J. Ellerd execute and deliver to the plaintiff, W. J. Newcom, the following written agreement: 'I agree to pay to W. J. Newcom $200.00 should he bring about a compromise of the Ellerds v. Hodges Case before court.'" Appellant submits this proposition: "Defendant's special issue No. 1 should have been given because the same pertinently and affirmatively presented defendant's version and theory, and such issue was nowhere submitted in the court's charge." There is a difference between the terms of the contract sworn to by appellee and that pleaded by appellant. The terms of the contract on which appellee sought to recover were embraced in an issue submitted to the jury, except as to whether or not the place of payment was embodied therein. These issues were sharply contested, and should have been submitted to the jury, which was not done by the court. The appel-lant having denied the contract as sworn to by appellee, and having pleaded a contract [5] The second assignment complains of as set out as a defense of the contract menthe admission in evidence of a copy of a tioned, he was entitled to have the issue letter written by appellee to appellant, which passed upon by the jury. This issue was in general terms refers to the money due raised by the appellee, and the court should him, and of placing him in an embarrassing have affirmatively presented it to the jury. position in submitting to Hodges a proposi- Railway Co. v. McGlamory, 89 Tex. 635, 35 tion of compromise and settlement between S. W. 1058; Pullman Co. v. Moise, 187 S. W. 249; Railway Co. v. Casseday, 92 Tex. 525, | Company, appellant, and against the Texas50 S. W. 125. For the error indicated the judgment of the court below is reversed and the cause remanded. INTERNATIONAL & G. N. RY. CO. v. 1. LIMITATION OF ACTIONS TION. Change in the cause of action from a joint to an individual one, made by amendment of the petition, is not the filing of a new suit, and to determine whether the cause is barred by the statute of limitations it will be considered as filed on the date of the original petition. 2. CARRIERS 227(1) CARRIAGE OF LIVE STOCK PLEADING COMMON-LAW LIABIL ITY. Mexican Railway to recover damages arising from negligence in handling cattle and delay in transportation. Judgment was rendered in favor of appellee against appellant for $455.50, being the amount of the damages without interest from the date of the injury to the date of the judgment. The cause of action originally alleged was (Court of Civil Appeals of Texas. San Antonio. that the cattle shipped belonged jointly to May 1, 1918.) J. P. Reed and W. A. Reed. The evidence in127(11)-STAT- troduced upon the first trial proved that UTE OF LIMITATIONS-AMENDMENT-CHANGE there was no joint ownership in the cattle, FROM JOINT TO INDIVIDUAL CAUSE OF AC- but that some of the cattle belonged to J. P. Reed and some to W. A. Reed. W. A. Reed was thereupon dismissed from the case and judgment was rendered in favor of J. P. Reed for the damages to the cattle that belonged to him. The evidence upon that first trial proved that no damage was caused by the Texas-Mexican Railway Company. The first judgment therefore decreed that J. P. Reed recover nothing by his suit against the Texas-Mexican Railway Company. Upon an appeal by the International & Great Northern Railway Company from the first judgment, this court held that the petition alleged joint ownership, whereas the evidence and judgment appealed from established individual ownership, and that therefore there was no pleading to support the judgment. No appeal was taken from the part of the judgment in favor of the TexasMexican Railway Company, which part of the decree was undisturbed by us. This court reversed the judgment against the International & Great Northern Railway Company and remanded the cause for new trial. The opinion is found in volume 189 S. W. 997. Where the shipper of cattle suing the carrier for damages in transit alleged that the carrier received the cattle for shipment, received the reward in payment for the services, and caused damage by its negligence, there was a sufficient allegation of the common-law liability of the carrier, which was alleged to be a common carrier. 3. APPEAL AND ERROR 1051(1)-HARMLESS ERROR EVIDENCE. Where, on trial without a jury, there was sufficient evidence properly admitted to prove the common-law liability of defendant carrier, which was pleaded, on which pleading and proof judgment against it was based, the improper ådmission of other evidence was harmless. 4. DEPOSITIONS 96 - ADMISSIBILITY AMENDMENT ELIMINATION OF ISSUE. Appellee, J. P. Reed, filed a second amend In an action against a carrier for damage to cattle in transit, the trial court did not err in permitting plaintiff to read excerpts from depositions taken before another party was dismissed from the cause as plaintiff and joint owner of the cattle and amended petition filed, alleged petition alleging the same cause of action ing individual ownership, though when the depositions were offered in evidence there was no issue of joint ownership, as there was when they were taken, but only ownership by plaintiff. 5. CARRIERS 229(2) — CARRIAGE OF LIVE STOCK-NEGLIGENCE-MEASURE OF DAMAGE. The amount of damage sustained by a shipper of cattle from the carrier's negligence in transit, plus 6 per cent. interest from the date of the loss, is the correct measure of the shipper's damage at the date he recovers judgment against the carrier. set forth in the original petition except individual ownership of the cattle damaged was alleged. The Texas-Mexican Railway Company pleaded res adjudicata, which was Sustained, from which no complaint is made. The International & Great Northern Railway Company by special exception and special plea urged that the second amended original petition alleged a new cause of action from that presented in the original peAppeal from Jim Wells County Court; L. tition, and that the new cause was barred by Broeter, Judge. Suit by J. P. Reed against the International & Great Northern Railway Company. From a judgment for plaintiff, defendant appeals. Reformed and affirmed. See, also, 189 S. W. 997. Greer & Hamilton, of Laredo, and Wilson, Dabney & King, of Houston, for appellant. Dougherty & Dougherty and H. S. Bonham, all of Beeville, for appellee. SWEARINGEN, J. J. P. Reed, the appellee, and W. A. Reed brought suit against the International & Great Northern Railway the statute of limitation. Upon the trial appellant objected to the introduction in evidence by appellee of depositions taken before the filing of the second amended original petition, presenting the new cause of action. The objection was overruled, the depositions introduced, all of which is presented for review and is supported by a proper bill of exception. [1] Under its first assignment of error appellant submits the following proposition: Reed for the shipment of cattle, alleging the "The plaintiff having sued jointly with W. A. date of the shipment to have been April 26, 1914, and the cause having remained as a joint cause of action until the filing of plaintiff's amended petition herein, the same made a new and different cause of action from that to which defendant was cited to appear and answer, and therein and thereby the same became, was, and is barred by the statute of limitations of two years." The rule of law here invoked as applied to facts of the present case has been clearly announced several times by our Texas Supreme Court and by the Court of Civil Appeals. The rule is that the change in the cause of action from a joint to an individual one, made by the amendment, is not the filing of a new suit. The cause of action thus changed by amendment will be considered as filed on the date of the original petition, up to which date only will the time be computed for the purpose of determining whether the cause is barred. Baker v. G., C. & S. F. Ry. Co., 184 S. W. 257; Foster v. Railway, 91 Tex. 631, 45 S. W. 376; Thompson v. Swearengin, 48 Tex. 560. The decisions above cited render further discussion of appellant's first proposition unnecessary. The first assignment is overruled. The fifth assignment presents a similar question and for the above reasons is also overruled. [2] The contention made by the second assignment is that the court erred in overruling appellant's exception to appellee's second amended original petition. The substance of the exception is that no cause of action was alleged against the appellant. An examination of the said second amended original petition discloses that appellee alleged that appellant received the cattle for shipment, received the reward in payment for said service, and that appellant caused the damage by its negligence. This was a sufficient allegation of the common-law liability of appellant, which was alleged to be a common carrier. The exception was overruled. We overrule the second assignment. [3] The third assignment complains of the admission of testimony. There was no jury. If the admission of the evidence objected to was error, it is harmless error, for there was sufficient evidence properly admitted to prove the common-law liability of appellant, which was pleaded, upon which pleading and proof the judgment was based. [4] The third assignment is overruled, and also the sixth assignment, which involves a similar question. The fourth assignment, submitted as a proposition, is as follows: "The court erred in permitting the plaintiff to read excerpts from depositions, over defendant's objections, that were taken before W. A. Reed was dismissed from this cause, and before this cause was reversed by the Court of Civil Appeals." We understand, as stated by appellee: "Appellant's sole complaint, as already stated, seems to be that when the depositions were taken there was in the case the issue of joint ownership, but that when the depositions were offer ed in evidence at the last trial of the case there was no issue of joint ownership, but only ownership by J. P. Reed." The trial court did not err in its ruling admitting the depositions. Kothman v. Faseler, 84 S. W. 390; Houston Co. v. Dunn, 176 S. W. 634. The following authorities cited by appellee also are relevant: Baker v. G., C. & S. F. Ry. Co., 184 S. W. 257; St. Louis, B. & M. Ry. Co. v. Green, 196 S. W. 555; Texas Midland R. R. Co. v. Cardwell, 67 S. W. 157; Thompson v. Swearengin, 48 Tex. 560; Portis v. Hill, 30 Tex. 529, 98 Am. Dec. 481. The fourth assignment is overruled. [5] Appellee submits the following crossassignment: "The court having found that plaintiff, J. P. Reed, had been damaged by reason of the negligence of the defendant, International & Great Northern Railway Company, in the sum of $445.50, and that such damage was sustained on the 29th day of April, 1914, erred in refusing to render judgment in plaintiff's favor for interest on said sum of $445.50 at the rate of 6 per centum per annum from the said 29th day of April, 1914." The trial court found it to be a fact that the damage was caused to appellee's cattle on the 26th day of April, 1914. The court further found that the negligence of appellant caused the cattle to sell for $3.30 per head less than the market price, and found that there were 135 head of cattle so damaged. This damage amounted to $445.50 on the said April 26, 1914. A correct measure of appellee's damage at the date of the judgment is the $445.50 plus 6 per cent. interest from the date of the loss. Watkins V. Junker, 90 Tex. 584, 40 S. W. 11; Steger et al. v. Barrett, 58 Tex. Civ. App. 331, 124 S. W. 174; Houston Car Wheel & Machine Co. v. Smith, 160 S. W. 435; Texas & Pac. Ry. Co. v. Erwin, 180 S. W. 662; Ft. Worth & R. G. Ry. Co. v. Montgomery, 141 S. W. 813; Sayles' R. S. art. 1985. We sustain appellee's cross-assignment. The judgment of the trial court will be reformed by adding thereto that appellee recover of appellant the sum of $445.50, together with interest at the rate of 6 per cent. per annum from the 26th day of April, 1914, up to the date of the judgment, and interest at the rate of 6 per cent. per annum on the amount of principal and interest on the date of the judgment from that date until the said sum is paid. As thus reformed, the judgment is affirmed, BAKER et al. v. COLE. (No. 5889.) APPEAL AND ERROR 20, 493-JURISDICTION Although it appears from the record that the case originated in justice court for an amount less than $200, where there is no transcript of the record from justice court, no For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes final judgment of that court and no appeal bond from justice to county court, it is not made to appear that the county court had jurisdiction, and appeal will be dismissed, since if the county court had no jurisdiction Court of Civil Appeals is without appellate jurisdiction. Appeal from Bell County Court; M. B. Blair, Judge. Suit between Bluford Baker and others and Geo. W. Cole, Jr. From a decree of county court on appeal from justice court the former appeal. Appeal dismissed. G. M. Felts, of Belton, for appellants. JENKINS, J. There is enough in the record in this case to show that it originated in the justice court for an amount less than $200, but there is no transcript in the record from the justice court, no final judgment of that court, and no appeal bond from the justice court to the county court. For these reasons, it is not made to appear that the county court had jurisdiction to try this case, and, that court having no jurisdiction, we are without appellate jurisdiction. 753(2)-FUNDAMEN 5. APPEAL AND ERROR Appeal from District Court, El Paso County; Ballard Coldwell, Judge. Action between Lee Harlan and others and the Acme Sanitary Flooring Company and others. Judgment for the latter and the former appeal. Affirmed. Seymour Thurmond and Edwards & Edwards, all of El Paso, for appellants. C. W. Croom and Jones, Jones, Hardie & Grambling, all of El Paso, for appellees. HIGGINS, J. This is an appeal from a judgment rendered upon an instructed verdict. Two assignments of error are presented in the brief complaining of the peremptory instruction. The assignments set forth the reasons why it was contended the peremptory charge was improperly given. Nei For the reasons stated, the appeal in this ther of the assignments presented in the case is dismissed. Appeal dismissed. HARLAN et al. v. ACME SANITARY brief are true copies of any paragraph of the motion for new trial. They are presented in a reconstructed form. [1] By chapter 136, Acts 33d Legislature, page 276 (Vernon's Sayles' Ann. Civ. St. 1914, art. 1612) it is provided that the assignments in the motion shall constitute the assignments of error. We have no authority to disregard the plain meaning of this legislative provision, and it has been repeatedly held that the courts will not consider asASSIGN-signments which have been reconstructed, or are incorrectly copied in the brief. the reasons indicated, the assignments canthe reasons indicated, the assignments cannot be considered. Edwards v. Youngblood, 160 S. W. 288; Mfg. Co. v. Walcowich, 163 S. W. 1054; Dees v. Thompson, 166 S. W. 56; Overton v. K. of P., 163 S. W. 1052; Smith 231(9)-PRESERVINGS. W. 981; Watson v. Patrick, 174 S. W. 632; v. Bogle, 165 S. W. 35; Coons v. Lain, 168 1. APPEAL AND ERROR 722(1) MENTS OF ERROR. Acts 33d Leg. c. 136 (Vernon's Sayles' Ann. Acts 33d Leg. c. 136 (Vernon's Sayles' Ann. Civ. St. 1914, art. 1612), providing that assignments in the motion for new trial shall constitute the assignments of error, held to preclude the consideration on appeal of assignments that are not correct copies of the corresponding paragraphs in the motion. 2. APPEAL AND ERROR EXCEPTIONS — STATEMENT OF GROUNDS Acts 33d Leg. c. 59, providing that parties shall present their objections to a charge before it is read to the jury, construed to mean that the particular grounds of objection shall be presented, and an objection without such grounds being specified is insufficient to entitle objection to be reviewed on appeal. 3. APPEAL AND ERROR 525(3) -RECORDPRESERVING EXCEPTIONS. Compliance with Acts 33d Leg. c. 59, providing that a party who objects to a charge shall present grounds of objection before charge is given, requires that the particular objections be specified in the record, and a failure to do so is fatal to a review of such objection on ap peal. 4. APPEAL AND ERROR 212 - QUESTIONS REVIEWABLE - PEREMPTORY INSTRUCTION The giving of a peremptory instruction is not fundamental error so apparent on record that it will be reviewed despite failure to object to such instruction as required by Acts 33d Leg. c. 59. For Oil Co. v. Crawford, 184 S. W. 728; Irrigation Co. v. Buffington, 168 S. W. 21; Ruth v. Cobe, 165 S. W. 530. [2, 3] Another reason which precludes consideration of the assignments upon their merits is the failure to observe the provisions of chapter 59, Acts 33d Legislature. This act requires that before the charge is read to the jury, the parties shall present to the court their objections. This plainly means that the parties shall present to the court the reasons why they object to the charge, or any part thereof. The record here simply discloses that the parties objected to the charge before it was given. It fails to show that they that they presented the grounds of their objection. If it were held that it is sufficient for a party to simply state that he objects to a charge, then the statute would be deprived of all efficacy. The objections must be distinctly stated so others. Judgment for plaintiff, and defendant Alamo Trust Company appeals. Affirmed. that the trial court then and there may be advised of the error, if any, which the charge contains. Railway Co. v. Thomas, 175 S. W. 822; Steele v. Dover, 170 S. W. 809. The Ryan & Matlock, of San Antonio, for appelrecord failing to show what objections were lant. W. H. Penix, of Mineral Wells, for apurged against the charge, the act was not complied with. Compliance therewith is imperative. Railway Co. v. Dickey, 108 Tex. 126, 187 S. W. 184. [4] The giving of a peremptory instruction is not fundamental error, and, if it is, the same is nevertheless waived by a failure to comply with the act last mentioned. Hendrick v. Lbr. Co., 200 S. W. 171; Needham v. Cooney, 173 S. W. 979; Railway Co. v. Wheat, 173 S. W. 974; Loeb v. Railway Co., 186 S. W. 378; Pearce v. Supreme, etc., 190 S. W. 1156; Heidenheimer v. Railway Co., 197 S. W. 886; Commonwealth, etc., V. Bryant, 185 S. W. 979. [5] We have carefully examined this entire record to ascertain if it presents any fundamental error requiring reversal, without being properly assigned, and find none. The judgment must therefore be affirmed. Riggs v. Baleman, 198 S. W. 813, and cases there cited. This court always regrets the necessity of disposing of appeals except upon' their merits, but it cannot disregard plain statutory provisions. pellee. FLY, C. J. This suit was instituted by appellee against F. T. Alexander, W. O. Scott, Herman Harms, H. E. Bahr, and appellant to recover 40 acres of land in Cameron county, and in the alternative to recover on seven promissory notes executed by Alexander to W. O. Scott for part of the purchase money of the 40 acres of land. It was alleged that the vendor's lien was retained on the land, and that the notes were transferred by Scott to appellee together with the lien and that payment was guaranteed by Scott. It was alleged that Bahr, Harms, and appellant were setting up some claim to an interest in the land. Appellant, Bahr, and Harms filed a general demurrer, general denial, and specially pleaded that the trust company had loaned Alexander $1,700, and had taken a deed of trust on the 40 acres of land sued for by appellee to secure a note given by Alexander to evidence the loan; that this occurred on September 10, 1912, after a thorough search of the records of Cameron county failed to disclose any claim against said land; that Alexander defaulted in payment of the note, and the land was sold by the trustee on July 1, 1913, and purchased by appellant, and afterwards, on March 7, 1914, appellant, for a valuable consideration, sold said land to Herman Harms, and on March 16, 1914, Harms sold the land to H. E. Bahr; that these different purchases were made in good faith without notice of any adverse claim to the land and for a valuable consideration. It was further alleged that the deed from Scott to Alexander was a full warranty deed, no lien of any kind being reserved therein, and no record was made of any transfer of the notes and lien to appellee from Scott, and appellant Harms and Bahr had no notice of the same. A plea of not guilty was filed as a trial amendment. In a supplemental petition, which was verified by affidavit, appellee alleged that the deed from Scott to Alexander, which failed to recite a lien on the land, was a forgery. and that the real deed recited a vendor's lien to secure the purchase money, and retained the superior title to Scott in the land A trial was held by jury, and a verdict instructed for appellee, which was accordingly returned, and judgment was rendered in favor of appellee as against Scott and Alexander in the sum of $5,370.10, and foreclosing the vendor's lien on the land, and that the lien of the deed of trust given by Alexander to appellant be made second to the vendor's lien. The evidence in this case shows beyond For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |