was not reached for trial until September 30,, that any other judgment could have been renwhen appellee again announced ready for dered other than the one that was rendered, trial, and appellant again announced not and, hence, appellant cannot complain of the ready, and renewed his oral motion for a ruling of the court in denying the jury. continuance on the same ground, which mo- Finding no reversible error, the judgment tion was overruled. When the case was of the lower court is affirmed. called for announcement for trial, appellant demanded a jury and tendered the jury fee. The jury was not allowed by the court for the reason, as given in the court's qualification of appellant's bill of exception to this ruling, that it would interfere with the orderly trial of the docket, in that both the nonjury assignment of cases and the jury assignment had already been made up and the latter was in the hands of the printer and being printed, and all the time of the court was taken up in these assignments. 1 [1] Bills of exception were taken by appellant, both to the overruling of his oral application for a continuance and to the refusal of the court to permit him to place the case on the jury docket, and these bills of exception are made the basis for appellant's assignments of error on this appeal. We do not believe either of these assignments is well taken. Appellant did not show any diligence in trying to secure the evidence of his codefendant Bishop, and his application for a continuance was therefore addressed to the discretion of the court, and we cannot say the court abused this discretion. American Surety Co. v. Camp (Tex. Civ. App.) 202 S. W. 799: Apache Cotton Oil & Mfg. Co. v. Watkins & Kelly et al. (Tex. Civ. App.) 189 S. W. 1083; Belknap et al. v. Groover et al. (Tex. Civ. App.) 56 S. W. 249; I. & G. N. Ry. Co. v. Biles & Ruby, 56 Tex. Civ. App. 193, 120 S. W. 952. GARRISON & WESTFALL v. PAINE. (No. 862.) (Court of Civil Appeals of Texas. Beaumont, Feb. 17, 1923. Rehearing Denied March 7, 1923.) 1. Garnishment 146-Amended answer filed without substituting lost original answer cannot be disregarded. Where an amended answer by garnishee was filed at a time when the original answer was lost, without substituting the original answer in the manner required by Rev. St. arts. 2157-2163, it was not thereby rendered a nullity, and, unless stricken from the record, was entitled to consideration. 2. Garnishment 178-Evidence by consent as to contents of lost answer precludes judgment by default. Where a lost answer of garnishees was not arts. 2157-2163, but the trial court, with consubstituted in the manner required by Rev. St. sent of both parties, was advised by the evidence as to the contents of the original answer, it was improper to render judgment against the garnishees as by default. Appeal from Nacogdoches County Court, J. M. Marshall, Judge. Action by D. E. Paine against Benton Stack, in which a writ of garnishment was sued out against Garrison & Westfall. From a judgment against the garnishees as on default, the garnishees appeal. Reversed and remanded. [2, 3,] In reference to the second assignment, any litigant has the right to a trial by jury, provided he complies with the provisions of the statute in securing same. He also has this right, even if dilatory in a compliance with the provisions of the statute, S. M. Adams, of Nacogdoches, for appelwhen the allowing of the jury would not in-lants. lee. terfere with the orderly disposition of the Russell & Seale, of Nacogdoches, for appelcourt's docket or deprive the opposing litigant of any right. Under the court's qualification to appellant's bill of exception in denying him a jury, the court found that to allow the jury at the time it was called for would interfere with the orderly disposition of his docket, and he states facts that would warrant such conclusion. In this state of the case, we do not think the court erred in refusing the jury trial. Hunt v. Makemson, 56 Tex. 9; Cabell v. Hamilton-Brown Shoe Co., 81 Tex. 104, 16 S. W. 811; Petri v. Lincoln Nat. Bank, 84 Tex. 153, 19 S. W. 379; Blair v. Paggi (Tex. Com. App.) 238 S. W. 639. [4] There is another ground that is fatal to this assignment of error: It does not appear from the record of the trial of the case WALKER, J. On the 9th day of September, 1921, appellee instituted this suit against one Benton Stack upon a promissory note, and sued out a writ of garnishment against appellants. Stack made no answer, and judgment by default was entered against him in favor of appellee for the relief prayed for. When the case was tried, appellants' original answer in garnishment was not found among the papers of the case, but evidence was received by the court, without objection from appellee, as to its filing and contents. An amended answer was filed on the day the case was tried, in which appellants denied that they owed Stack any sum of money whatever, and negativing all facts on which they could For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes (248 S. W.) be held liable as garnishees. This answer was not controverted by appellee, nor was it excepted to on any ground, nor was any motion filed by him to strike it out, nor to require appellants to substitute their original answer, but the trial court, on conclusion of the trial, on his own motion, without striking it from the record, refused to consider the amended answer for any purpose, and rendered judgment against appellants as on default, on the ground that they had declined to substitute their original answer. [1] This was error. The filing of the amended answer at a time when the original answer was lost from among the papers of the case, without substituting the original answer in the manner required by statute (Rev. St. arts. 2157-2163), did not render it a nullity. Unless stricken from the record it was entitled to consideration. Stallings v. Williams (Tex. Civ. App.) 235 S. W. 636. [2] Again, the trial court, with consent of both parties-for by not objecting to the testimony appellee must be held to have consented to its reception-was fully advised as to the contents of the original answer. Our Supreme Court, citing article 1475, now article 2157, in Houston v. Biythe, 60 Tex. 506, said: "We are of the opinion that these statutory provisions are cumulative in their character." The other questions presented on this appeal will not occur on another trial. Reversed and remanded. EASTHAM v. SMITHER et al. (No. 8290.) (Court of Civil Appeals of Texas. Galveston. Feb. 15, 1923.) Appeal and error 773(4)-Court will not review statement of facts to determine sufficiency of evidence when no briefs filed. The appellate court will not review the statement of facts to determine whether the evidence supports the judgment, but will presume it does, where no briefs are filed and where the record discloses that the trial court had jurisdiction, and duly and regularly entered a judgment which it had power to render, and which conformed to the pleadings the judgment will be affirmed. and merchandise. No briefs for either side have been filed in this court-a fact to which our attention was not directed at the time the cause was received on submission; if it had been, the usual practice would have been to dismiss the appeal for want of prosecution. Since it was taken on submission, however, we have inspected the record on file here, and find it discloses that the trial court had jurisdiction of the parties and the subject-matter of the litigation; that after hearing the cause upon the merits, it duly and regularly entered a judgment in favor of the plaintiffs below against the appellant here which it had the power to render, and which conforms to the pleadings of the parties as presented before it. In such circumstances, this court is not called upon to review the statement of facts to determine whether or not the evidence was sufficient to support the judgment so rendered, but will presume that it was. An affirmance is ordered. Affirmed. HART v. H. R. & A. T. MAST. (No. 893.)* (Court of Civil Appeals of Texas. Beaumont. Feb. 10, 1923. Rehearing Denied March 14, 1923.) Appeal and error 193(1)—Error only reached by special exception not fundamental. Where alleged defects in a petition could have been reached only by special exception, fundamental error cannot be suggested. Appeal from District Court, Nacogdoches County; L. D. Guinn, Judge. Action by H. R. & A. T. Mast against Max W. Hart. Judgment for plaintiffs, and defendant appeals. Affirmed. Russell & Seale and V. E. Middlebrook, all of Nacogdoches, for appellant. Hodges & Greve, of Nacogdoches, for appel lees. HIGHTOWER, C. J. This was a suit by the appellees, H. R. and A. T. Mast, against the appellant, Max W. Hart, and others made defendants with him on two notes, and for the foreclosure of a deed of trust lien on certain land in Nacogdoches county. Upon Appeal from District Court, Walker Coun- trial appellees were awarded judgment for ty; Carl T. Harper, Judge. Action by Gabe Smither and others against B. A. Eastham. Judgment for plaintiffs, and defendant appeals. Affirmed. GRAVES, J. This suit was one in which recoveries were sought upon a promissory note secured by a deed of trust upon certain lands, and upon an open account for goods, wares, $4,697, that being the principal and accrued interest due on the notes at the date of judgment, and foreclosure of the deed of trust lien was also decreed. From that judgment Hart is the only defendant appealing. We have examined appellant's brief, but have discovered no assignment of error to any action of the trial court, and therefore that court's judgment ought to be affirmed For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes unless fundamental error is apparent on the provides for attorney's fees, and alleged that face of the record. Counsel for appellant has suggested fundamental error by contending that the petition of the plaintiff's was subject to the general demurrer interposed by appellant. Clearly, there is nothing in appellant's contention, The defects in the plaintiffs' petition that counsel would now point out could have only been reached by special exception. It has been ordered that the judgment be affirmed. MORRIS et al. v. HALL. (No. 1425.) (Court of Civil Appeals of Texas. El Paso. Feb. 21, 1923. Rehearing Denied I. Vendor and purchaser 317-In action on purchase-money note, court's finding held not to show that land was public free school land. In vendor's action on a purchase-money note, on purchasers' contention that public free school lands are not subject to private contract, the court's finding that the land in question comprised a stated block and section number "of the public free school lands in Reeves county" held not a finding that these lands were not disposed of by the state, but simply a matter of description. 2. Judgment 203-Statement, reciting rendition of judgment and notice of appeal, held not a judgment. As against a contention that two judgments were entered in the same case, a statement, reciting that the court having heard the evidence rendered a judgment for a stated amount for plaintiff, whereupon defendants gave notice of appeal, etc., held not. a judgment, but an order noting notice of appeal, etc. 3. Appeal and error 907 (3)-In absence of a showing to contrary, presumed that there was evidence supporting finding. Where there is no statement of facts in the record, and hence nothing to show that there was no evidence on a stated point, trial court's finding on that point is conclusive; it being presumed that there was evidence to support the finding. it was given in part payment for certain sections of land described by section numbers and block number "of the public free school lands in Reeves county, Texas," and that a vendor's lien was retained on said land to secure its payment. The note is copied in full in the petition. Prayed for judgment for the amount, principal, and interest, of note and for attorney's fees and for foreclosure of lien. The defendants by answer say: "At the time they made the note which plaintiff has declared upon in this suit * * it was mutually understood and agreed." The matters following are not important to any question presented by brief. Tried without a jury, and judgment entered for amount sued for with foreclosure of lien, etc. Upon writ of error it is here for review. [1] The first proposition is that: "Public free school lands are not subject to private contract, and the court having found that the lands were such could not be a consideration for the note sued on." The finding of the court relied upon is: Hall, agreed to sell to the defendants, C. F. Mor"About February 28, 1922, plaintiff, G. T. ris and William P. Everheart, sections Nos. 23, 26, 34, 35, 38, 47, and the west part of section No. 24, consisting of 240 acres of said section No. 24, all of block No. 57, of the public free school lands in Reeves county, Tex., and comprising 4,080 acres more or less, and said defendants agreed to purchase said lands from plaintiff." That portion of this finding "of the public free school lands in Reeves county, Tex.," is not a finding of fact that these were lands not disposed of by the state, but simply a matter of description. There was no plea of failure of consideration for the note. Therefore there is nothing in the record to indicate that this question was before the court for determination. [2] Proposition 2: "The rendition of two judgments in the same Error from District Court, Reeves Coun- case is inhibited by law." ty; Chas. Gibbs, Judge. Action by G. T. Hall against C. F. Morris and another. Judgment for plaintiff, and defendants bring error. Affirmed. R. N. Grisham, of Eastland, and Jno. B. Howard, of Pecos, for plaintiffs in error. Morrison & Morrison, of Big Spring, for defendant in error. The facts are that a judgment for plaintiff, regular in form, was rendered, as indicated in the statement of the case, May 29, 1922, and upon the same day the following was entered: "This day this cause came on to be heard for trial, and plaintiff and defendants appeared in person and by counsel, and the court, having heard the evidence, rendered judgment in the sum of $8,872.90, in favor of plaintiff, and whereupon defendants * * then and there duly excepted * and gave notice of appeal, etc., to and they are here and now allowed 30 days after adjourn * * * HARPER, C. J. G. T. Hall brought this action against C. F. Morris and W. P. Everheart on a promissory note in the principal sum of $7,160 with interest at 8 per cent. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes * ment to file bills of exceptions and statement of facts." It is clear that the latter is not a judg ment, but an order noting notice of appeal and granting time to file bills, etc. [3] The third, fourth, and fifth are to the effect that a finding by the court which does not show the introduction of the note and the deed retraining a lien without a further authorize a judgment. There is nothing in Finding no error, the cause is affirmed. WORLEY v. MORGAN et al. (No. 1429.) 1. Innkeepers 11(12)-Finding of negligence In action against proprietor of hotel by persons occupying the relation of lodgers and not of guests for the value of property stolen from their room, evidence held to sustain a finding of negligence on the part of the defendant. 2. Trial 260(1)-Refusal of charges not error where matters covered. Where there was nothing affirmatively erroneous in the general charge, and requested charges by defendant were given supplying the omissions in the general charge, there was no error in the refusal of other requested charges by defendant. Appeal from El Paso County Court, at Law; J. M. Deaver, Judge. and judgment against him in the sum of $286.60 Worley appeals. Appellees occupied the relation of lodgers, and not that of guests. In view of this relationship the parties are agreed that, in order to fix responsibility upon Worley, it must be shown that the loss was caused by his negligence, and without contributory negligence on the part of appellees. Both of these issues were submitted in the court's charge. The jury by its verdict resolved the same in favor of appellees. [1] It is earnestly insisted that the evidence is insufficient to sustain a finding of negligence upon appellant's part. It is shown that at the time burglaries were very common in the city; that the telephone pay box in the hall of the hotel had been twice rifled by some unknown person; that a trunk in the hall had been robbed; that Worley and wife occupied a room in the basement of the hotel, and persons could enter upon the first floor from the street and pass to the upper floor without being seen by the Worleys from their room. Negligence is peculiarly an issue of fact, and under the circumstances indicated we are not prepared to hold that the finding of negligence is unsupported Upon the issue of by sufficient evidence. contributory negligence, we think too, without detailing the evidence, that it is sufficient to support the verdict. [2] Various assignments complain of the court's charge and of the refusal to give requested special charges. There is nothing affirmatively erroneous in the general charge and the defendant's charges Nos. 5, 6, and 10 are given. These given charges supplied all omissions in the general charge and in connection therewith presented the defendant's defensive issues in as favorable manner as could be rightfully demanded. There was therefore no error in the refusal of other charges requested. This disposes of all questions presented. Suit by J. G. Morgan and another against W. A. Worley. Judgment for plaintiffs, and ST. defendant appeals. Affirmed. Goggin, Hunter & Brown, of El Paso, for appellant. C. M. Counts and Davis, Jackson & Fryer, all of El Paso, for appellees. TEXAS et al. v. COX. (No. 8761.) (Court of Civil Appeals of Texas. Dallas. 1. Action 45 (1)-Causes of action for killing mules at different times and places held properly joined. HIGGINS, J. Appellant was the proprieWhere one mule was killed by negligent tor of the Lake Hotel in the city of El Paso. operation of defendant's train, and another Appellees had a room in the hotel and while mule was killed at another time and place, also absent for several days their room was en- by defendant's train, the owner could sue for tered by some one and their property therein the killing of both mules in one action, notstolen. This suit was brought by them to withstanding the amount of damages claimed recover the sum of $801.70, the alleged in one instance was within the jurisdiction of value of the lost property. From a verdict the county court, and in the other within the For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes jurisdiction of the justice's court, since where several causes of action are in the plaintiff in the same capacity and against defendant in the same capacity, they may be joined in one suit. 2. Railroads 446(2)—Negligence of engineer of train killing mules held for jury. In an action against a railroad company for killing mules belonging to plaintiff by the negligent operation of its trains, evidence as to the speed of the trains, failure to give signals, and to keep lookout, held to make it a question for the jury whether or not the engineer in charge of the train was negligent. 3. Negligence 139(1)-Where negligence must be alleged and proved and evidence is conflicting, court must define negligence and submit question to jury. Where it is necessary to allege and prove negligence, and the case is tried before a jury upon conflicting evidence, it is indispensable that the court in submitting the facts to the jury, whether on a general charge or special issues, should define negligence and submit the question of fact as to whether or not the injury was caused through negligence. On Motion for Rehearing. 4. Railroads 447(1)-Requested instruction held sufficient to define negligence in action for killing mules on track, In an action against a railroad company for the negligent killing of plaintiff's mules by defendant's train within the switch limits of a town, a requested instruction that, if defendant kept its cattle guards near the depot and operated its trains through such town, at the time it was alleged that the mules were killed, as a reasonably prudent person would have done under similar circumstances and conditions, there would be no liability, held a sufiicient definition of negligence, and refusal to give it was error. 5. Railroads 411 (4)-Railway liable for injuring animals within fenced portions of right of way only when resulting from lack of ordinary care. A railway company is liable for injuring and killing animals within the fenced portions of its right of way only when the injuries result from a lack of ordinary care. 6. Railroads 441 (3)—Burden on plaintiff to prove lack of ordinary care resulting in killing of stock within fenced part of railroad right of way. Where animals are killed by the operation of a railroad while within the fenced portions of its right of way, the burden is upon the plaintiff both to allege and prove a lack of ordinary care. Richard Mays, of Corsicana, and E. A. Landman, of Athens, for appellants. Miller & Miller, of Athens, for appellee. HAMILTON, J. This suit for damages was instituted by appellee for the recovery of the value of two mules alleged to have been killed on the right of way of the St. Louis Southwestern Railway Company of Texas. It was alleged that the death of each of the mules was caused by reckless and careless operation of the trains which struck and killed them. One of the mules was alleged to have been killed on the 25th day of September, 1919, and the other on the 20th day of October, 1919. The amount of damages alleged to have been occasioned by the killing of one of the mules was $225, and the amount of damages alleged to have resulted from the killing of the other was $150. [1] The first proposition presented on this appeal is to the effect that the suit as pleaded involves a misjoinder of causes of action, because the wrongful acts are alleged to have occurred on different dates without any connection between the two; one of them being in an amount within the jurisdiction of the county court and the other in an amount within the jurisdiction of the justice of the This does not constitute a peace's court. misjoinder of causes of action, and the proposition cannot be sustained. The pleading clearly presents a cause of action alleged for two separate and distinct torts committed by the same instrumentality and substantially in the same way and under identical circumstances. It was proper to combine them in one cause of action, as was done by appellee. Where the several causes of action are "in the plaintiff in the same capacity and against the defendant in the same capacity" they may be joined in one suit. [2] Appellee sufficiently alleged negligence, and the proof was sufficient to support a finding of negligence on the part of appellant. There was proof to the effect that the train in each instance was being run at a very rapid rate, and that it passed through the town of Murchison, within the limits of which one of the mules was killed, and within, or very near, the limits of which the other mule was killed also. The proof is uncontradicted that the trains did not slacken their speed, and that no signal or alarm of any kind was given, such as the ringing of the bell and the blowing of the whistle. The engineer on the train which is alleged to have killed the animal on October 20, 1919, testified that he was keeping a lookout, and Appeal from Henderson County Court: that he did not see either animal on the Joe A. Johnson, Judge. Action by M. A. Cox against the St. Louis Southwestern Railway Company of Texas and others. Judgment for plaintiff, and defendants appeal. Reversed and remanded. right of way, and that so far as he knew he did not strike either one. This evidence, however, was to be considered by the jury with evidence of a contradictory nature, and it was within the province of the jury to de For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |