ÆäÀÌÁö À̹ÌÁö
PDF
ePub

law allows damages for the value of the property converted, with interest from the date of seizure. This is the measure fixed by law; but the jury, in determining in what amount the plaintiff has been damaged, are not required to allow and find as a matter of law the interest as a part of such damages. The jury may, under certain facts, conclude that plaintiff would be compensated without an allowance of interest. Reversed and remanded.

BELL v. BROWN.

(Court of Civil Appeals of Texas. Dec. 6,

1895.)

APPEAL-INSUFFICIENT BOND-DISMISSAL.

1. Under the act requiring that a bond on appeal from a justice's to a county court shall be double the amount of the judgment, the costs of the justice's court must be included in the amount of the bond. Colorado Co. v. Delaney, 54 Tex. 280, overruled.

2. An appeal from a justice's to a county court may, on failure of appellant to give a proper bond, be dismissed before the term at which the case would be triable.

Appeal from Palo Pinto county court; W. E. Newbrough, Judge.

On rehearing. Denied. No opinion filed at former hearing.

Wallace & Wallace, for appellant.

STEPHENS, J. In refusing the rehearing sought in this case, it is deemed proper, in view of the apparently conflicting decisions. upon the question of practice involved, to state our conclusions in writing. That question is whether the amount of the costs is to be added to the amount of the debt or damage recovered in the justice's court in fixing the amount of the appeal bond. The statute requires the bond to be in double the amount of the judgment. It was held in Colorado Co. v. Delaney, 54 Tex. 280, that by the amount of the judgment was meant the amount recovered exclusive of costs. In Owens v. Levy, 1 White & W. Civ. Cas. Ct. App. § 409, the court of appeals expressed a different opinion, holding that the construction given the statute in Colorado Co. v. Delaney would cut off the right of appeal in all cases in the justice's court where the plaintiff fails to recover and is adjudged to pay the costs. This decision was cited by counsel, and apparently followed by the supreme court in Ross v. Williams, 78 Tex. 371, 14 S. W. 796. True, in both these cases the only amount recovered was for costs; but the principle must be the

It cannot, with any show of reason, be contended that the costs alone should determine the amount of the judgment in one case, and be entirely ignored in another. The statute makes no such distinction, but requires the appeal bond to be in double the "amount of the judgment" in all cases alike, and also expressly provides that the judg

ment entry shall include as a part thereof the disposition of the costs. Rev. St. arts. 1613, 1639. We think the court of appeals placed the proper construction on the statute, and that the case of Colorado Co. v. Delaney, supra, and any others following it, should no longer be recognized as authority. The action of the county court, therefore, in this case, in dismissing the appeal because the amount of the bond was only double the sum recovered in the justice's court exclusive of costs, was proper.

It is strenuously insisted, however, that the court had no right to act on the motion to dismiss till the term at which the case could have been tried. The transcript was filed after the first day of the term at which the appeal was dismissed, but the appellant was notified, and resisted the motion. We are of opinion that a court may at any time, upon notice to the opposite party, dismiss a case for want of jurisdiction. Such action is not in any sense a trial of the case, but a refusal to permit it to remain on the docket for trial. A defeated litigant should not be permitted to obtain a stay of execution without the execution of a sufficient appeal bond, in order that he may have a trial of a case which must be dismissed when it is reached. Motion overruled.

GRAVES v. HORN.1 (Court of Civil Appeals of Texas. Dec. 20, 1895.)

APPEAL-PROOF OF INABILITY TO PAY COSTS.

An appeal was properly dismissed where the only proof of appellant's inability to pay or secure the costs was an affidavit filed with the district clerk, it not appearing that it was called to the attention of the court, or that any action was taken thereon.

Appeal from district court, Wichita county. Action between C. E. Graves and Henry Horn. From a judgment for the latter, Graves appeals. Dismissed.

Hodges & Ofield, for appellant. J. H. Cobb, for appellee.

PER CURIAM. This appeal was dismissed because no sufficient proof was made, as required by law, of the appellant's inability to pay or secure the costs. The proof consisted merely of an affidavit to that effect filed with the clerk of the district court trying the case during the term at which the case was tried. It does not appear that it was called to the attention of the court, or that any action. was taken thereon. Feeling constrained by the previous decisions of our supreme court in the construction of this statute, we concluded that the proof was insufficient. Warren v. Wooters, 52 Tex. 570; Woolridge v. Roller, Id. 451; and subsequent cases.

HUNTER, J., not sitting.

1 For opinion of supreme court, see 33 S. W. 322.

LONGLEY et al. v. WARREN. (Court of Civil Appeals of Texas. Oct. 26, 1895).

ADVERSE POSSESSION-MISTAKE AS TO TITLE.

One settling on land to acquire it under the homestead statute, erroneously believing it to be vacant public land, may, by such occupancy, acquire title by adverse possession against the true owner.

Appeal from district court, Jack county; J. W. Patterson, Judge.

Action by Henry Warren against J. E. Longley and others. Judgment for plaintiff. Defendants appeal. Reversed.

Jones & Gilliland, for appellants. G. A. McCall, for appellee.

In ad

STEPHENS, J. The only controverted issue in this case is one of law, to wit, whether one who has settled upon a quarter section of land as provided by our homestead donation statute, erroneously believing it to be vacant public domain, can interpose 10 years of such occupancy as a bar to the suit of a previous locator under a valid certificate, the land remaining unpatented. That he cannot seems to have been decided in Schleicher v. Gatlin, 85 Tex. 270, 20 S. W. 120; but in Converse v. Ringer, 24 S. W. 705, the contrary was held by the court of the Third district, and the able opinion of Chief Justice Fisher in that case seems to us to announce the true construction of our 10-years statute of limitation. dition to the reasons there given, we call attention to article 3198, Rev. St., defining "adverse possession" to be "an actual and visible appropriation of the land, commenced and continued under claim of right inconsistent with and hostile to the claim of another." The right of the state is expressly excluded from the operation of the statute. Rev. St. art. 3200. The sworn application of the settler must state that he claims the land for himself. Rev. St. art. 3939. In this case the actual settlers, besides their applications and surveys, made permanent and valuable improvements on the land, as found by the verdict, and manifested unmistakably their several appropriations of the land, "commenced and continued under claim of right (with boundaries designated as provided in article 3195) inconsistent with and hostile to the claim of another" (appellee) (Id. 3198); and of all others whose rights might be affected by the operation of the statute. The state excepted, the possession was undoubtedly adverse to all the world. The statute only requires it to be adverse to "another," which, however broad its meaning, evidently was not intended to apply to the state. The evidence of such adverse possession for more than 10 years being undisputed, the court might properly have instructed the jury to return a verdict for appellants. At all events, the refusal to submit the issue, to which error is assigned, in the view we take of the law, requires the judgment to be reversed. The learned district judge doubtless felt con

strained to the course pursued by the decision adopted by our supreme court in Schleicher v. Gatlin, supra, citing other cases, which, however, when critically examined, will be found not to sustain it. Taking it for granted that appellee would not desire to have the cause remanded, we not only reverse, but here render the judgment against him, in order that there may be an end to the litigation.

On Rehearing.

(Dec. 20, 1895.)

This motion insists that, until reversed by the supreme court, the decision in Schleicher v. Gatlin, 85 Tex. 270, 20 S. W. 120, is conclusive upon this court. It will be noted that the opinion in that case was written by Judge Garrett, the present chief justice of the court of civil appeals for the First district, who was then the presiding judge of the commission rendering the decision. In the recent case of Cartwright v. Pipes (Tex. Civ. App.) 29 S. W. 690,-overlooked when our opinion was filed,— Chief Justice Garrett, speaking for the court, maintains that the decision in the SchleicherGatlin Case was right on the facts of that case, but insists that it is not authority, as indicated in the opinion of Chief Justice Fisher in the Converse-Ringer Case (Tex. Civ. App.) 24 S. W. 705, for the position that the mere fact that a person in possession of land belonging to another is of the belief that it is vacant public land makes his possession, as a matter of law, that of one claiming in subordination, and not adversely. A charge was there approved to the effect that 10 years' adverse possession of land hostile to the true owner would confer title on such possessor, though he held the land under the mistaken belief that it was vacant. If, then, the judge who wrote the opinion in the case be correct in the interpretation so given, there is no necessary conflict between that decision and the one here rendered. In this connection, see Hearne v. Gillett, 62 Tex. 27. But if the interpretation of Judge Fisher-also a member of the commission at the time the case was decided-be accepted, the rule announced seems now to be disapproved by all the judges then composing the commission; the chief justice of this court having been the other member. We do not, therefore, feel constrained by that decision to approve a judgment which seems to us to be clearly erroneous. The still more recent decision of the court of civil appeals at Galveston in the case of Hartman v. Huntington, 32 S. W. 562, is in line with our conclusion in this case that the court erred in refusing to submit the issue of adverse possession, though it may not accord with our action in here rendering judgment for appellants. But of this action we do not understand appellee to complain, provided the reversal of the judgment was proper; the facts being undisputed, and admitting of but one reasonable interpretation. We therefore still approve the disposition made of the case, and overrule the motion.

5313

1900

ALEXANDER v. NEWTON.

(Court of Civil Appeals of Texas. Nov. 9,

1895.)

ADVERSE POSSESSION-COLOR OF TITLE SUFFI-
CIENCY OF DESCRIPTION.

Five years' adverse possession under a
deed in which the field notes do not embrace
the land so held is insufficient to vest title
thereto in the grantee, though the description
is followed by the words, "And I do hereby
transfer *
all the right, title, and inter-
est that I may possess under the 10-years stat-
ute of limitations;" there being no way of as-
certaining the identity of such interest.

Appeal from district court, Kaufman county; J. E. Dillard, Judge.

Trespass to try title by M. S. Alexander against W. P. Newton. From a judgment for defendant, plaintiff appeals. Reversed. Huffmaster & Huffmaster, for appellant. Lee R. Stroud, for appellee.

[merged small][merged small][merged small][merged small][merged small][ocr errors]

Upon the trial, appellee, under his plea of the five-years statute, introduced in evidence a deed from Vienna Wilson to himself, dated November 22, 1887, which was filed for record the next day, and recorded January 2, 1888. This deed described the land conveyed as follows: "All that certain parcel of land known as the tract of land upon which I and my former husband, Caleb Herd, settled in the year 1852, and continued to occupy until sold and conveyed to W. P. Newton, on the date hereof, said tract or parcel of land known as a part of the Andrew Nail league and labor of land, situated in Kaufman county, Texas, on the waters of East Fork of the Trinity; beginning south, 2 west, from the north corner of Andrew Nail league and labor of land, a stake from which a locust, 6 inches in di

LIGHTFOOT, C. J. We adopt the following statement of the case as substantially correct: Appellant, M. S. Alexander, instituted this suit against W. P. Newton, January 30, 1893, in the usual form of an action of trespass to try title to recover a certain tract of land situated in Kaufman county, containing 124 acres, a part of the Andrew Nail league, the field notes and boundaries being particularly set forth in plaintiff's petition. October 10, 1893, appellant, as plaintiff below, filed his first amended original petition, alleging that on January 1, 1893, plaintiff was lawfully seised and possessed in fee simple of said 124 acres of land, and that afterwards, to wit, January 2, 1893, defendant, W. P. Newton, unlawfully entered into and upon said land, and ejected plaintiff therefrom, and plaintiff claimed dam-ameter, bears south, 48 east, 11 vrs., a bois

ages and rents. September 4, 1893, defendant filed his original answer, containing general and special exceptions, and a plea of not guilty. October 4, 1893, defendant filed his first amended original answer, containing: First, general demurrer; second, plea of not guilty; third, plea of limitation of 3 years; fourth, plea of limitation of 5 years; fifth, plea of limitation of 10 years; sixth, suggestion of improvements in good faith. March 9, 1894, defendant filed in court a plea admitting the better title in plaintiff to the land in controversy, and that plaintiff can recover the same, unless defendant can make out title under his pleas of limitation of 5 and 10 years. There was a judgment for defendant, and plaintiff has appealed.

It is claimed by appellee that he holds by limitation the 124 acres of land in controversy, as a part of the Andrew Nail league; that he holds under a deed from the widow of Caleb Hurd, who settled in the north corner of the league; and that 640 acres, surveyed in a square so as to embrace the Hurd improvements, will include the 124-acre tract in controversy. The following is a plat of the land as claimed by appellee:

v.33s.w.no.2-20

d'arc, 4 inches in diameter, bears south, 20 west, 11⁄2 vrs.; thence south, 43 east, 618 vrs., to a stake near head of ravine, from which an ash, 4 inches in diameter, bears south, 10 west, 2912 vrs.; thence south, 45 west, 1460 vrs., to a stake in timber; thence north, 43 west, 618 vrs., to stake from which a locust, 5 inches in diameter, bears south, 48 east, 2 vrs., a locust, 3 inches in diameter, bears south, 40 east, 234 vrs.; thence north, 45 east, 1,460 vrs., to the place of beginning, -containing one hundred and twenty-four acres of land, or all the land that I may be entitled to by virtue of my ten-years residing on same, and using and cultivating it. And I do hereby transfer and convey unto the said W. P. Newton all the right, title, and interest that I may possess under the ten-years statute of limitations."

The court below charged the jury, in substance, that if they believed from the evidence that appellee took possession of the land in controversy under said deed, and remained in such possession from January 2, 1888, a period of five years before this suit, having peaceable, adverse possession of the same, and claiming the same as his own

property, and using and enjoying the same, and paying taxes thereon, then the jury should find for appellee. Appellant, under proper assignment of error, attacks this charge, because the deed under which appellee claimed to hold does not describe the land with sufficient certainty to notify appellant that he (appellee) was setting up claim to said 124 acres. The field notes set out in the deed certainly do not embrace the land in controversy, as they are confined to a small tract, said to be 112 acres, in the north end of the league, and more than a half mile from the land embraced in this suit. The remaining words in the description are as follows: "Or all the land that I may be entitled to by virtue of my tenyears residing on the same, and using and cultivating it. And I do hereby transfer and convey unto said W. P. Newton all the right, title, and interest that I may posses under the ten-years statute of limitations." Do these words convey any definite idea of the land intended to be conveyed beyond the 112 acres, if, in fact, such intention existed? Suppose the deed had only embraced this description, and nothing more; could it be said from an inspection of such a deed that the grantor intended to convey a definite and specific tract of 640 acres of land, and that such tract was in a particular and definite shape, and necessarily included the 124 acres of land in controversy? We think

The uttermost limit to which any of our decisions have gone was to sustain the five-years statute under a deed calling for all the land of the grantor in a certain county, and where, by reference to the records of such county, it could be definitely ascertained what lands were meant. Cantagrel v. Van Lupin, 58 Tex. 578. This was done under the well-established legal maxim, "That is certain which can be rendered certain." In this case, even if it should be conceded that the grantor intended to convey, in addition to the land described, all the right which she had under the statute of limitation, the deed is perfectly silent as to what that right was, or how far it extended, and there is no place where that information can be found. If she claimed beyond the land actually described, how easy it would have been to have set it out in the deed, at least, by some designation which would have served notice upon the owner that the deed was intended to embrace the 124 acres in this case,-a half mile distant from the land described. It has been held by our supreme court, in an able opinion by Judge Willie, that limitation, like estoppel, is a plea which requires "much clearness of proof." Tucker v. Smith, 68 Tex. 481, 3 S. W. 671. Every presumption is in favor of the rightful owner. Ang. Lim. § 385. If appellee, under such a deed, could reach a half mile southeast beyond the land described, so as to reach the 124-acre tract, which he admits was owned by appellant,

we see no reason why the same theory would not carry him in any other direction, and, with as much plausibility, fix his claim upon any other land in the neighborhood, thus bringing about the abused conditions so graphically described by Judge Roberts in the case of Mooring v. Campbell, 47 Tex. 39. The claim under the five-years statute was not intended to rest on any such floating or movable basis, but should be fixed and certain, serving notice of the boundaries of the hostile claim and possession. Cook v. Oliver, 83 Tex. 561, 19 S. W. 161; Harkness v. Devine, 73 Tex. 628, 11 S. W. 872; Acklin v. Paschal, 48 Tex. 169; McDonough v. Jefferson Co., 79 Tex. 535, 15 S. W. 490; Wofford v. McKinna, 23 Tex. 36. It is useless for us to pass upon the other grounds of error, as we deem this sufficient to settle the case in so far as the five-years statute is concerned. Under the ten-years statute, there is a conflict in the evidence, and we do not deem it proper to discuss it.

For the error of the court in its charge to the jury on the five-years statute of limitation, the judgment is reversed, and the cause remanded.

MARTIN et al. v. JOHNSTON. (Court of Civil Appeals of Texas. Nov. 16, 1895.) RECOVERY OF PENALTY-PLEADING CONSTITUTIONAL LAW-STATUTE FAILING TO FIX MAXIMUM PUNISHMENT-WEIGHTS AND MEASURES.

1. A petition to recover a statutory penalty imposed by a general law need not plead the statute.

2. Const. U. S. Amend. 8, 14, prohibiting excessive fines, refers to powers exercised by the United States, and not by the states.

3. Act 1879 (Acts 16th Leg. p. 116), prohibiting any person, other than a public weigher, from weighing certain produce, is not unconstitutional for failure to fix the maximum fine to be imposed.

4. More than one penalty imposed by such act may be recovered in the same petition.

5. Act 1879 (Acts 16th Leg. p. 116) § 7, prohibits any person other than a public weigher from weighing certain produce; and section 8 prohibits any factor from employing any other person to weigh such produce, provided any owner shipping any such produce may, by written instructions, authorize his factor to have the same weighed by private weigher. Act 1883 purports to amend sections 1, 2, and 9 of the act of 1879, and provides that nothing therein contained shall prevent any person from weighing such produce, when requested to do so by the owner. Held, that the owner of such produce may procure any one to weigh his produce, when he is present and acts for himself. Appeal from district court, Fannin county; E. D. McClellan, Judge.

Action by James B. Johnston against Martin, Wise & Fitzhugh and others. There was a judgment for plaintiff, and defendants appeal. Reversed.

Appellants make the following statement of the nature of this suit, which is accepted as substantially correct by appellee:

Appellee originally brought three suits, one

against each of appellants, claiming damages from each of them for substantially the same cause set out in his fourth amended original petition. They were instituted in March, 1887. Subsequently (April 18, 1890), by an order made in the cause against Martin, Wise & Fitzhugh, both of the other causes were consolidated with it. On September 4, 1893, plaintiff (appellee) filed his fourth amended original petition, alleging, in substance: (1) The consolidation above mentioned. (2) That the appellants Martin, Wise & Fitzhugh and Johnson & Long were then, and were when the suit was brought, members, stockholders, officers, and directors of the Lamar Warehouse Company, and that each and all of the defendants would be styled and treated and charged as joint tort feasors in the matters thereinafter set forth; that Lamar Warehouse Company was chartered June 4, 1883, and its business, as expressed in its charter, was to do a general warehouse and commission business, "to receive, store, house, and ship cotton or other goods." (3) That "some time in August, 1883, in order to protect the sellers of cotton, the commissioners' court of Lamar county made, passed, and entered of record an order providing for the appointment of public weigher for Paris and Blossom Prairie, in said county of Lamar, to act until the next general election thereafter, and for the election of four cotton weighers in said county of Lamar, at the general election next thereafter, as provided by law, who should be elected by the qualified voters of said county, thereby establishing the office of public weigher in said county, and made the same elective at the next election thereafter." (4) That on or about November 4, 1884, he was by the legal voters, etc., duly and legally elected to the office of public weigher in and for said county of Lamar, for the term of two years after said election next following, to act as such in the city of Paris, in said county and state; that immediately thereafter he qualified as such public weigher, as the law provides, by taking the oath and giving the bond required by law; that he at once entered upon the discharge of his duties, etc. (5) That he was then and there, and up to the 5th day of November, 1886, ready and willing to weigh all bales of cotton, etc., which were required or were necessary to be weighed in said Lamar county, and which were brought to said city for sale by the owners or producers thereof, or their agents. (6) That immediately after his election and qualification, and on divers days since then, and while he was public weigher as aforesaid, he offered to defendants his services as public weigher, and offered to weigh, by himself and by deputies, all bales of cotton which they, or either of them, might buy or desire weighed; that they each refused to allow him, or any deputy of his, to weigh any cotton for them, or for any person from whom they bought or received cotton. (7) That

(10)

Martin, Wise & Fitzhugh and Johnson & Long were on November 4, 1883, and have ever since been, engaged in the business of buying cotton in the city of Paris. (8) That from September 1, 1885, to February 1, 1886, Martin, Wise & Fitzhugh so bought in the city of Paris as many as 9,000 bales of cotton, none of which were weighed by the public weigher or deputy public weigher, and were bought from the owners and producers thereof by them, and that all the cotton so bought by them during that time was weighed by P. M. Speairs or A. B. Long, neither of whom was a public weigher or a deputy public weigher, and both of whom were employed and paid by defendants to weigh cotton bought by them from the owners and producers thereof, and delivered at Paris by wagons; and the said Speairs and Long were employed by the defendants to weigh all the cotton bought by them and each of them, and they did so weigh, under said employment, all cotton bought by each and all of the defendants during said time. (9) Substantially the same allegations are made as to the defendants Johnson & Long, except that it is charged that they so bought, etc., 5,000 bales of cotton. That during the time from September 1. 1885, to the last day of January, 1886, the defendants Martin, Wise & Fitzhugh and Johnson & Long and Lamar Warehouse Company, acting together, employed and paid P. M. Speairs and A. B. Long to weigh, and they did weigh, all the bales of cotton bought by either and all of the defendants during the time plaintiff was public weigher aforesaid, and the said P. M. Speairs and A. B. Long, under and by virtue of said employment, did weigh all the cotton purchased by either of the defendants, or which was stored in or passed through the Lamar warehouse; and that said cotton was so weighed without the request of owners thereof, or either of them, and when so weighed was not the property of the defendants, or either of them, nor of the said P. M. Speairs or A. B. Long. (11) That during that time Martin, Wise & Fitzhugh and Johnson & Long bought from the owners and producers thereof: From, to wit, J. F. Fleece, 23 bales; from Dan Wisely, 12 bales; from C. A. DeWitt, 13 bales; from P. M. Estes, 17 bales; from W. Marchbanks, 18 bales; from J. R. Wooldridge, 25 bales. That he is not able to state the precise day on which defendants purchased any of said cotton, nor can he state the names of any other persons from whom defendants, or either of them, bought cotton, except as hereinafter shown, so as to locate the precise time the same was purchased or weighed, or the names of the persons from whom it was bought, or the number of bales bought from each person, for the following reasons, to wit: During all of said time all of the defendants were buying cotton in the city of Paris brought there from all parts of Red River, Lamar,

« ÀÌÀü°è¼Ó »