appellees answered by general denial, plea of, and that, therefore, the charge was a correct not guilty, and special pleas of limitation of instruction. three, five, and ten years, and for value of improvements made in good faith, and special pleas of estoppel. Upon trial of the case it resolved itself into a suit to determine the true location of the original south boundary line of the Evans Myrack survey of land. The case was tried before a jury, and was submitted upon special issues, under appropriate instructions, and upon the answers of the jury in response to such special issues appellees moved the court that judgment be rendered in their behalf, which was accordingly done; hence this appeal. It is perhaps well, at the outset, to say that the appellant is complaining that after he perfected his appeal to this court and filed the statement of facts that the court papers became missing from the office of the clerk of the lower court, and that said clerk made a partial transcript, which was duly filed in this court, and a motion made by appellant for certiorari to complete this record, which was by this court granted; and it is further stated that the clerk being unable to locate the papers that therefore the record in this court is not complete, and therefore it was not possible to properly brief the case. Suffice it to say, with respect to the matter complained of, that appellant has shown no diligence in perfecting his appeal, and in having a complete record before this court. The first assignment of error is as follows: "The court committed error in his charge to the jury in the third paragraph in charging the jury that if N. W. Gann, at the time he sold the land to Evans Myrack, had the land surveyed, or pointed out the lines to the same by himself or through his agent, the plaintiff would be bound by same,' because there was no evidence upon which to base said charge, and the court presumed a fact not proven to the injury of appellant." The proposition under this assignment is: "It is the duty of the court to instruct the jury on the issues made by the pleading and the evidence only." The counter proposition, in reply, is: "N. W. Gann, being the owner of both the Massingill and Holloway surveys of land at the time of his conveyance to Evans Myrack, conveyed to the extent of the boundaries pointed out and described in said conveyance; therefore the charge of the court, That if N. W. Gann, at the time he sold the land to Evans Myrack, had the land surveyed, or pointed out the lines to the same by himself or through his agent, the plaintiff would be bound by the same,' was and is a correct charge and instruction." If the facts are as stated by appellee that Gann was the owner of both the Massingill and Holloway surveys of land at the time of his conveyance to Evans Myrack, and conveyed to the extent of the boundaries pointed out and described in said conveyance when he sold the land to Evans Myrack, that the land so surveyed or pointed out to be the same, either by himself or through his agent, that the plaintiff would be bound by same, [1] The facts show that the deed to G. W. Massingill and wife to N. W. Gann of date July 23, 1870, conveyed the G. W. Massingill 160-acre survey to N. W. Gann. The statement of facts further shows that the deed of N. W. Gann to Evans Myrack of date December 22, 1879, conveyed the Evans Myrack tract to the said Evans Myrack, and the deed of conveyance of the said N. W. Gann to W. J. Massingill, of date December 29, 1882, conveyed to Massingill certain of the G. W. Massingill survey. The deed to Evans Myrack was filed for record in the office of the county clerk of Angelina county, Tex., on December 2, 1879. The evidence with reference to the south boundary line of the Evans Myrack tract, by many of the witnesses, placed the same where the appellees claim that it really is. Taking the record, therefore, as a whole, we are unable to say that there was any error in the charge of the court with reference to the matter complained of, and the same is therefore overruled. [2] The second assignment of error is as follows: "The court committed error in giving defendant's special charge to the jury as is shown by was in substance as follows: 'Gentlemen of the appellant's bill of exception No. 9, which charge jury, if you find that W. J. Massingill could not recover, if he was the plaintiff in this case, then Massingill, cannot recover, and you will return are instructed that the plaintiff, G. W. a verdict for the defendants." you The proposition under this assignment is: "The foregoing charge was virtually a charge to return a verdict for defendants. If we take the second clause of the charge, it is a peremp tory instruction, pure and simple, and, take the charge as a whole, it is virtually an instruction to return a verdict for defendants for the reason that W. J. Massingill was not asserting any claim to the land, and under the evidence could not maintain a suit because he had not title to the property, having parted with the title." Appellees' counter proposition is: "G. W. Massingill having succeeded to the estate which he asserts to claim in the land by inheritance from his deceased mother and by the gift from his father, W J. Massingill, could not recover unless the said W. J. Massingill could have recovered had he proceeded by suit prior to the deed of partition; the property having been community, and appellant having succeeded thereto by inheritance and gift from his mother and father." We are unable to see any error in this charge of the court. [3] The third assignment as follows: of error is as "The court committed error in admitting in evidence the map or plat of the Evans Myrack land over the objections of plaintiff." The proposition under this assignment is that a map or written instrument is not admissible, unless proven up by competent evidence. It is contended, on the other hand, that appellees having offered the partition deed between the heirs of Evans Myrack. deceased, containing a map of the partition, and the same having been received without, Massingill told them as to the title to the objection, appellant cannot now be heard to land, as is shown by appellant's bill of excepcomplain of such reception. The bill of exception upon which appellant bases his third assignment of error was approved by the court with the following qualification: "Approved with the qualification that the statement of facts on this question are referred to." With reference to the introduction of said partition deed, the statement of facts recites the following: "The defendant next offered in evidence a deed from Paralee Bradford et al. to E. Moody, dated the 19th day of November, 1913, conveying block No. 4, and recorded in Book 30, page 241, of the Deed Records of Angelina County, Tex. Here said deed was read to the jury by defendants' counsel, and is as follows, to wit. * * The map or plat of which appellant is complaining was not offered independently of the deed, but was offered as part of the deed, and with the deed, being incorporated in and being a part of the deed, and was offered in evidence and received without objection, and was a recorded instrument, and by agreement between opposing counsel was read from the records. We see no error in the action of the court in the admission of this plat. Therefore the assignment is overruled. tion Nos. 6 and 3. The counter proposition is that the testimony was introduced tending to show good faith on the part of Moody and Lumly in placing the improvements on the land, as evidenced by their pleadings to that effect. We see no error in the action of the lower court in this matter, and the assignment is therefore overruled. [6] The sixth assignment of error complains that the court erred in admitting the testimony of the defendant's witnesses, E. Moody, Squire Long, and J. A. Freeman, as shown by appellant's bills of exception Nos. 5, 7, and 8. Without adverting upon the fact that the brief does not comply with the rules, we will say only that the matter complained of seems to be a matter of common knowledge, such as the appearance of cuts and marks on trees, and the age thereof, so that any person acquainted with the general appearance, brought about by observation, might give their opinions with reference thereto, and the particular testimony of which appellant seems to complain is as follows: "I can't tell any difference much; they looked very old then, and still look the same way." In our judgment, there has been no injustice which could accrue from the action of the court in admitting this testimony. The seventh assignment of error is to the effect that the court erred in rendering judg [4] The fourth assignment of error complains that the court erred in admitting the evidence of the defendant Moody as to his opinion as to the map of the E. Myrack land being correct, and the proposition is submit-ment in favor of the defendants for any part ted that before a witness can testify about a technical proposition, he must show that he has sufficient knowledge to understand the business about which he testifies. The witness Moody was allowed to testify as to the location of the land, as shown by the map, to the effect: "I have seen this map before, I think; I am sure I have. This map correctly shows my land here; it is this block here (witness showing on the map)." of the G. W. Massingill survey. Having given the matter such care as a close inspection of the record before us is susceptible, we are unable to see where or in what particular there was error in the action of the lower gument on the whole case by the appellant court. It is strenuously contended in the arthat the record is such, quoting the language of appellant, "that the court can hardly de cide it intelligently, and therefore should reverse the case in order that appellant should Appellant's attorney then made the fol- be enabled to have the honorable Court of lowing objection to this testimony: "We object to him stating that it correctly shows his land or any other land, as that is but the opinion of the witness, if the court please. "Witness: Well, I have been all around this land, and this map looks correct to me; I will say that much. 1 saw this map downstairs in the county clerk's office before I bought this land. I saw the map this morning when it was offered in evidence, and I saw it on record before I bought the land, and it looks correct to me. I see this road here as shown on this map, and I remember that Squire Long showed me that road when we were out there looking at the land, and I remember this corner here right close to this road." Civil Appeals to intelligently decide it," and for the reason that, "if appellees are allowed to profit by an incomplete record, unscrupulous appellees will take advantage and the clerks of the district and county courts will be unable to find the papers to make the records complete as in the case at bar," and further using the language of appellant, "If we should undertake to substitute the missing records in this case, we could not do so for the reason that it is impossible to make an intelligent substitution of the court's charge and of the special charge of the defendants, and in fact all of the missing rec In our opinion, the testimony was admis-ords, except the appellant's original petition, sible. [5] The fifth assignment complains that the court erred in admitting the testimony of defendants Moody and Lumly in answer to ques which was merely a petition in trespass to try title, and is sufficiently set out in plaintiff's first supplemental petition." "Therefore," it is claimed by appellant, "the appel same intelligently before the honorable Court of Civil Appeals." Will Glover, of San Antonio, and N. P. Woodward, of Temple, for appellant. JENKINS, J. Appellant brought suit against appellee in the justice court for rent, $130, and damage to a window, $50, total, $180. He sued out a writ of attachment upon the alleged grounds that appellee was about to dispose of her property with the intent to defraud her creditors. Appellee filed a cross-action for damages in the sum of $200 for wrongfully and maliciously suing out the attachment. Upon a trial in the justice court the appellee recovered judgment for $200 on her cross-action, from which appellant appealed to the county court. Action by J. J. Hegman against Miss Lustre Roberts. From an adverse judgment, [7] We have heretofore stated that no dili-on appeal from a justice, plaintiff appeals. gence was used on the part of appellant to Reformed and affirmed. have an intelligent record, if such could be made, of the proceedings in the court below in this cause, and this court has looked to the bills of exception, which were approved by the judge trying the cause, and which seem to be relied on mainly by the appellant in his presentation of this case, and we have failed to find any merit in the contentions made by appellant, and believing, as we do, that in the light of this record, which could have been made perfect, or comparatively so, had appellant used proper diligence and means provided by our laws, as set out in Vernon's Sayles' Texas Civil Statutes, from articles 2157 to 2163, which appellant failed to do, and which seems to have been lost sight of in this case, this court cannot find any merit in the contentions of appellant. He seems to have had in the trial court a fair and impartial trial, and the law, applicable to the facts in same, presented by the trial judge; therefore the case, in the light of the record as made and presented, must be affirmed. It is so ordered. (No. 5836.) HEGMAN v. ROBERTS. 1. JUSTICES OF THE PEACE 141(4)—APPEAL 2. TRIAL 240-ARGUMENTATIVE INSTRUC- Instruction: "You are charged that the party who resorts to an attachment process does so at his own peril. No belief, however firm and sincere, that the grounds set out in his affidavit are true, can affect defendant's right to recover against him the actual damage sustained, if in fact they are untrue"-is argumentative; likely to be taken by the jury as indicating that the court thought that no ground for attachment existed. 3. TRIAL 194(7)-INSTRUCTIONS-WEIGHT OF EVIDENCE. Objection to a charge as on the weight of evidence is not tenable where there is no dispute as to the fact. 4. APPEAL AND ERROR 928(3)-RECORDSHOWING ERROR-PRESUMPTION. Appellant being required to show error, it will be presumed, in the absence of statement of facts, in favor of an instruction on weight of evidence, that the fact was undisputed. 5. JUDGMENT 253(4)—FORM. Judgment should not be for plaintiff for amount sued for, and for defendant on his cross-action for a greater amount, but that plaintiff take nothing, and defendant recover the excess. In the county court the appellee amended her answer, and alleged actual damages in the sum of $500, and punitory damages in the sum of $150. It may fairly be inferred from the record that the additional damages claimed by appellee in the county court were such as had accumulated by reason of the additional deterioration of the goods attached since the trial in the justice court. property attached was merchandise, and was not replevied by either party, but remained in the hands of the constable to the time of the trial. The The case was submitted on special issues, and the jury found, among other things, that the market value of the goods at the time of the seizure was $889, and at the time of the trial was $600. The judgment of the county court recites that the appellee "pleaded continued damages to the time of the trial." Appellant excepted to appellee's plea for damages, upon the ground that the amount of the same ($650) was beyond the jurisdic tion of the justice court in which the case originated, and that for that reason the county court had no jurisdiction to try said cross-action. The exception was overruled, and appellant excepted to the action of the court in this regard. Upon the findings of the jury that the attachment was wrongfully sued out, and that appellee's actual damages occasioned thereby was $289, and that appellee was indebted to appellant in the sum of $89, the court rendered judgment for appellant for $89, and for appellee for $289. [1] The appellant, under a proper assignment of error, submits the proposition that "the county court had no power under its appellate jurisdiction to take cognizance of, or render judgment for, a greater amount than could have been considered and adjudicated by the justice court." He cites, in support of his proposition, Cain v. Culbreath, Appeal from Bell County Court; W. S. 35 S. W. 809; Barnett v. Ward, 144 S. W. Shipp, Judge. 697; Ostrom v. Traver, 28 S. W. 701; Ry. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes issues at the same time if pleaded in one suit instead of two. Co. v. Hughes, 44 Tex. Civ. App. 436, 98 S. W. 415; Ry. Co. v. Hood, 59 Tex. Civ. App. 363, 125 S. W. 982. These authorities sus- But, without reference to this point, we tain appellant's proposition. We are, how- are of the opinion that appellant's assignever, of the opinion that the proposition is ment as to the jurisdiction of the county not sound. It is well settled that a county court should be overruled, for the reason court has no jurisdiction to try a case ap- that, the county court having acquired jupealed from a justice court where such court | risdiction by appeal by reason of the amount was without jurisdiction. But where, as in in controversy in the justice court not being this case, the justice court had jurisdiction, in excess of $200, it had jurisdiction to adjuand the county court has acquired jurisdic-dicate the claim for additional damages by tion by appeal, we can see no reason why a reason of the alleged deterioration in the defendant may not thereafter amend his value of the goods attached since the appeal. pleadings in the county court, and claim any Ry. Co. v. Underwood, 100 Tex. 285, 99 S. W. amount of damages within the jurisdiction 92, 123 Am. St. Rep. 806; Sulzberger v. Hille, of the county court, where such amended 187 S. W. 992; Klabunde v. Vogt, 182 S. W. plea does not set up a new cause of action, 715. but simply amplifies the plea for damages set up in the justice court. Had the amended plea for damages not exceeded the jurisdiction of the justice court, there can be no doubt that it would have been proper to allow the same. Von Boeckmann v. Loepp, 73 S. W. 849. Why should a court which has properly acquired jurisdiction by appeal be ousted of such jurisdiction by a plea in reconvention for damages involving the same transaction tried in the court below, simply because the amount claimed is in excess of the amount which could have been adjudicated in the court below, but not in excess of the jurisdiction of the court in which the amendment is filed? In this connection it should be remembered that a county court is not an appellate court in the sense of revising the errors committed by a justice court, but that it tries the case appealed de novo and upon its merits. [2-4] Appellant assigns error on the court's giving the following special charge at the request of appellee: Had appellee not filed her plea in reconvention, or had she withdrawn such plea, she might have sued the appellant in the county court for the amount claimed herein for wrongfully suing out the attachment. In such case, the appellant's suit being pending in the county court for rent, and appellee's suit for damages growing out of the alleged wrongful attachment in the justice court being also pending, it would have been proper for the county court, upon motion of either party, to have consolidated said suits, and tried the whole transaction at one time. It occurs to the writer that it is a strained technicality to say the county court would have jurisdiction to consolidate such cases, but would have no jurisdiction to try all the "You are charged that the party who resorts to an attachment process does so at his own peril. No belief, however firm and sincere, that the grounds set out in his affidavit are true, can affect the defendant's right to recover against him the actual damage sustained, if in fact they are untrue." This is the law, but it is improper for the court to so instruct a jury, inasmuch as it is argumentative, and may be taken by the jury as indicating that the court thought that no ground for the attachment existed. The error assigned by appellant is that the charge is upon the weight of the evidence. This objection to a charge is not tenable where there is no dispute as to the fact. There is no statement of facts in the record, and we must conclude that the testimony as to the attachment being wrongfully sued out was undisputed. The burden is on the appellant to show error, and, he not having done so, his assignment is overruled. We have considered the other assignments, and, finding no error of record as to any of them, we overrule the same. [5] The court entered judgment for the appellant for $89, and for the appellee for $289. The one amount should have been deducted from the other, and judgment should have been rendered that the appellant take nothing, and that appellee have judgment for $200, and we here reform the judgment, and render the judgment which should have been rendered by the trial court. As thus reformed, the judgment of the trial court is affirmed. Error, if any, in failing to submit in main charge issue of contributory negligence must be deemed cured by the giving of two requested instructions on such issue. 1070(1)-HARMLESS ERROR-VERDICT-APPORTIONING DAMAGES. In action for death of a servant, the employer cannot complain of apportionment of damages among all those having a right of action, since the lump sum judgment would pro SURPLUSAGE tect it against any subsequent action. 5. DEATH ~99(4)—ExCESSIVE DAMAGES. Verdict of $35,000 in favor of widow and five minor children for death of locomotive engineer 37 years old, in good health, earning $150 per month, with prospects of $200 per month, with life expectancy of 32 years, and devoted to his children, was not excessive. Appeal from District Court, Bell County; F. M. Spann, Judge. and $4,000 to each of the five minor children. The defendant has appealed, and seeks a reversal upon several grounds, none of which presents new or difficult questions of law; and therefore, instead of spending time in a vain effort to convince every one of the correctness of our decision, we content ourselves with announcing our conclusions, without much elaboration, upon the points considered by us the most important. However, this course is not pursued for the purpose of gaining the approval of those who complain about long opinions in other peoples' cases, but complain still more if the appellate court fails to discuss every question decided against them in their own cases. [1, 2] 1. The main charge of the court is assailed as being erroneous, because it contained nothing specifically submitting to the jury the question of contributory negligence. Appellee's counsel make two answers to that criticism, both of which are believed to be sound, and which are: First, that the testimony did not raise the issue of contributory negligence, and therefore it was unnecessary to give any charge upon that subject; and, second, that the court gave two special charges upon that subject at the request of appellant, and therefore, if that issue was presented by the testimony, the requested instructions must be considered as supplements to the main charge, and as curing the omission complained of in the latter. [3, 4] 2. Unlike Lord Campbell's Act, and the statutes of most of the American states, the federal liability act, under which this Action by Mrs. E. B. Carpenter, adminis- suit was prosecuted, does not require the tratrix of E. B. Carpenter, deceased, against jury to make any apportionment of the damthe Gulf, Colorado & Santa Fé Railway Com-ages awarded by the verdict. In this case, pany. Judgment for plaintiff, and defendant appeals. Affirmed. Terry, Cavin & Mills, of Galveston, A. H. Culwell, of El Paso, and Chas. K. Lee, of Ft. Worth, for appellant. A. L. Curtis, of Belton, and Winbourn Pearce, of Temple, for appellee. in obedience to the charge of the court, the jury made such apportionment, which counsel for appellant contend constitutes reversible error. At least two answers may be made to that contention, and these are: First. It is quite certain that appellant was not injured by the apportionment referred to. According to the clear and undisputed testimony, if appellant was liable at all, such liability was for the benefit of those among whom the apportionment was made; and the judgment will protect appellant from any other claim asserted on behalf of either of them, based upon the fact that appellant had wrongfully caused the death of E. B. Carpenter. This being the case, it is immaterial to appellant as to how much of the recovery is awarded to each beneficiary. Second. The verdict reads: KEY, C. J. Mrs. E. B. Carpenter brought this suit, as administratrix of the estate of her deceased husband, E. B. Carpenter, to recover damages on account of the death of her husband, she alleging that his death was caused by the wrongful and negligent conduct of the defendant, Gulf, Colorado & Santa Fé Railway Company. The suit was brought for the benefit of Mrs. Carpenter and five minor children of herself and E. B. Carpenter. The petition contained all the necessary allegations to warrant a recovery under the "We, the jury, find for Mrs. E. B. Carpenter, federal liability statute. The defendant anadministratrix, the sum of $35,000, as damages, and apportion the same as follows: To Mrs. swered by general and special exception, gen- E. B. Carpenter, $15,000; to Allen Carpenter, eral denial, and plea of contributory negli- $4,000; to Charles Carpenter, $4,000; to George gence and assumed risk. There was a jury Carpenter, $4,000; to Carney Carpenter, $4,trial, which resulted in a verdict and judg-000; and to Blanche Carpenter, $4,000." ment for the plaintiff for $35,000, apportion- The judgment follows the verdict, and ed as follows: $15,000 to Mrs. Carpenter, awards to the plaintiff, Mrs. Carpenter, the For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |