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formed by him for the defendant. The residence of defendant was alleged to be in

HEARN V. BITTERMAN. Nueces county. After service of the process

(Court of Civil Appeals of Texas. June 7, on him in Brazoria county, the defendant

1891.) appeared and pleaded to the venue of the

Brief Ox APPEAL-CONVERSION-WHAT COXSTI. suit against him, and made no other appearance. The case was continued by consent, 1. Where in part of appellant's brief several without prejudice to the plea of the defend- assignments of error, each containing several

subdivisions, are all stated together; and, after ant, and, the case having been afterwards

stating one proposition under them all, other called for trial, the defendant presented his statements intended to support the several asplea to the venue, when the plaintiff except- signments are separately stated, the whole brief ed thereto. The justice of the peace sus

will not be stricken out, but simply such part tained the objection to the plea, and granted


2. Where a person to whom a load of cotleave to the defendant to amend the same. ton has been taken to be ginned refuses to alThe cause was then continued, at the re- low the owner to take it away until he pays a quest of the defendant, to the next term of

bill owed by a third person, it is a conversion of

the cotton. the court. It was afterwards further continued by agreement, the defendant reserv

Appeal from Nueces county court; W. B. ing his rights under his plea of privilege.

Hopkins, Judge. When the case was finally called for trial,

Action by 0. H. Hearn against L A. Bitthe defendant presented an amended plea,

terman. There was a judgment for defendwhich was again excepted to; and, the court

ant, and plaintiff appeals. Reversed. having sustained the exception, he declined G. R. Scott & Bro. and F. W. Moore, for to further amend. Judgment was then ren- appellant dered against him for the amount of the account sued on. On appeal in the county WILLIAMS, J. Appellee has moved the court, the defendant renewed his plea to court to strike out appellant's brief for want the venue, and the plaintiff again presented of a proper statement of the nature and rehis exception, in addition to other grounds, sult of the suit, and because the points raised that the plea came too late. The exceptions by assignments are not separately presented. were sustained, and the plea stricken out. The first objection is not well taken, the Defendant had not had any defense to the statement being sufficient. merits entered on the docket of the justice The first five assignments, of which the of the peace, and, when his plea to the fourth contains six, and the fifth contains venue was finally stricken out by the county seven, subdivisions, are all presented togeth. court, he asked to have a general denial en- er, and under them all one proposition is tered to the plaintiff's cause of action. This stated. Under, this are statements intendwas refused by the court, because he had ed to support the several assignments sepnot entered the defense in the justice's court. arately. This part of the brief is certainly

We think the court erted in striking out not made in accordance with the rules, and the defendant's plea to the venue, because will be disregarded. The point relied on in the case appeared to have been continued in an assignment should be plainly and distinct. the justice's court after the same had been ly presented in connection with a statement filed. If the plaintiff desired to have the of the facts necessary to develop it, so that plea sooner acted on, he should have called the court, by following the order of the brief, it to the attention of the court. It was the may apprehend the questions raised for de duty of the plaintiff to have the plea acted cision. There are other assignments suffion, if he did not wish it to go over to a fu- ciently presented to raise the controlling ture term, and, failing to do this, he waived questions in the case, and the entire brief bis right to an early hearing upon the plea. will not be struck out. Upon the facts found Huffman v. Hardeman (Tex. Sup.) 1 S. W. by the trial judge, and others which are un575. The plea to the venue was good. It contradicted, the court is of the opinion that was not necessary to negative therein every the judgment was erroneous. The plaintiff exception to the statute of venue.

put his wagon, loaded with cotton, at deThe court also erred in refusing to allow fendant's gin for the purpose of having the the defendant to enter a general denial in cotton ginned from the wagon. Later, fearthe county court to the plaintiff's cause of ing the cotton would not be safe, he demandaction. Swinborn v. Johnson (Tex. Civ. App.) ed that he be allowed to take it and the 24 S. W. 567; White v. Johnson, Id. 568. wagon away.

Defendant asserted no right Appellant also complains of the refusal of to retain the cotton for the purpose of ginthe court below to file conclusions of law and ning it and getting toll out of it, but demandfact. This should have been done; but this ed pay for the previous ginning of a bale court will not reverse a judgment of the of cotton for another party, for which plaincourt below for failure to do so, unless it is tiff was not liable, as a condition precedent shown that the party appealing has probably to the delivery of the plaintiff's property. been injured by the omission. The judgment This he had no right to do. Whether, under of the court below will be reversed, and the the arrangement, he would lawfully have cause remanded. Reversed and remanded. retained the wagon and cotton until the lat. ter could be ginned is a question that need court, judgment was rendered against both not be decided, as he admits that be made defendants, and the city prosecutes this apno such claim. He has never asserted any peal. such right, but has held the property to make The first assignment complains of the overplaintiff pay him the money demanded, and ruling of the exceptions of the city to the refused to deliver it until such payment was statement of plaintiff's cause of action. The made. This was a conversion of it, and ren. exception was that the suit was to hold the dered him liable for the damages which city liable for acts of its officers for which it plaintiff sustained. Hamilton v. McLaugh- was not responsible. The question sought to lin (Mass.) 12 N. E. 424; West v. Tupper, 1 be presented does not arise on exceptions. Bailey, 193. The judgment is reversed, and As stated, the suit was for a conversion by as the evidence conflicts as to the value of the city and another of plaintiff's horse. The the wagon, the trial judge having made no statement did not show on its face that the finding on that point, the cause will be re. wrong complained of had been done by a manded.

public officer in the exercise of a power for the abuse of which the city would not be liable. That a city may be liable for its own

torts, such as the wrongful conversion of CITY OF VICTORIA V. JESSEL. the property of another, is well settled. Says (Court of Civil Appeals of Texas. June 7, Judge Dillon: “But, if the wrongful act be 1894.)

not ultra vires, it may be the foundation of APPEAL Bond - DISMISSAL OF APPEAL - ACTION

an action of tort against the corporation, AGAINST CITY – SUFFICIENCY OF COMPLAINT - either when done by its officers under its preReview ON APPEAL.

vious direct authority, or has been ratified, or 1. On motion to dismiss an appeal from a

adopted, expressly or impliedly, by it, or when judgment against a city for want of an appeal bond, evidence that, before the cause of action

it was done by the officers, agents, or servants accrued, the city had reorganized under the pro- of the corporation, in the execution of corpovisions of the Revised Statutes relating to in- rate powers or the performance of corporate corporation of cities, is admissible, as in such

duties of a ministerial nature, and was done so case no appeal bond is required. Rev. St. art. 499.

negligently or unskillfully as to injure others, 2. An exception to a compiaint against a city in which case the corporation is liable for the for conversion of a horse, on the ground that a carelessness or want of skill of its officers or city is not liablc for such act of its officers,

immediate servants or agents in the course should be overruied, unless the complaint shows that the officers acted under a power for the of their authorized employment, without exabuse of which the city would not be liable. press adoption of the act." 2 Dill. Mun. Corp. 3. Where the statement of facts is not

$ 968. signed by the presiding judge, the sufficiency of the evidence to sustain the judgment will not

When the plaintiff sued for the conversion be reviewed.

by the city of his horse, he stated, sufficient

ly for a justice's court, a cause of action, Appeal from Victoria county court; J. L.

which might exist against a municipal corDupree, Judge.

poration as well as against an individual. Action by Louis Jessel against the city of

Whether the act complained of was such that Victoria and one Sandhof for the conversion of a horse. From a judgment for plaintiff,

its consequences were chargeable to the city,

or was that of an officer for whose conduct the city appeals. Affirmed.

the city would not be liable, were questions Thurmond & Barron, for appellant. Fly which could only be determined from the ev& Hill, for appellee.

idence introduced. The same objection was

urged to the evidence and is made a ground WILLIAMS, J. Appellee sued the city and of complaint against the charge. But there one Sandhof in the justice's court, stating is no statement of facts properly authentihis cause of action to be for damages for the cated, the signature of the presiding judge conversion of his horse. Judgment was ren- not being attached to that in the record. It dered in that court against the city, from cannot be considered, and we are therefore which it gave notice of appeal to the county

unable to determine whether or not the evicourt, but filed no appeal bond. Motion was dence made a case in which the city was lemade in the latter court to dismiss for want gally liable or not. Caswell v. Greer (Tex. of a bond, the record not showing that the Civ. App.) 23 S. W. 331, 1002. city was incorporated under the general laws. It is assumed in the brief of appellant that In answer to the motion, the city offered the horse was taken by an officer of the city proof, which was admitted, to show that it because it was running at large in the city had, before the cause of action accrued, reg. limits, in violation of a valid ordinance proularly adopted the provisions of the Revised hibiting it, and authorizing the impounding Statutes relating to corporations, in lieu of of animals so taken; and that such officer the charter under which it had previously had refused to accept payment, when tenacted. This evidence was, we think, prop- dered by plaintiff in accordance with such or. erly admitted, and the cou't rightly refused dinance, of the fees and expenses legally to dismiss the appeal, no bond being re- chargeable, and to release the animal; and quired. Rev. St. art. 499. In the county that this constituted the wrong for which plaintiff sought redress. If this were made See Bank v. Lovenberg, 63 Tex. 506. The to appear, it may be true that the city briefs are ordered to be stricken out, and apwould not be liable, on such facts alone, for pellant is required to file copies of his brief, the misconduct of the officer, and we do not either properly written or printed, within mean to be understood as holding otherwise. 20 days from this date, and in case of his But, without the evidence before us, we can- failure to do so the appeal will be dismissed. not see what the case was. Nor can we re

On the Merits. view the charge so as to say that there is such error in it as to authorize a reversal.

(June 7, 1894.) There are portions of it which would be prob- Appellee Hall sued appellant to recover ably erroneous, if addressed to such facts the value of certain hogs converted by him. alone as those above supposed. But the ey- Defendant pleaded in justification that he idence may have shown others which, under aided the officers of the city of Corpus the rule of law above quoted, would have Christi in taking up the hogs because they made the city liable, and rendered the in- were running at large in the city, in violastructions substantially correct, or else prac- tion of its ordinances. Two ordinances were tically harmless. No other assignment can set up in the answer, one of which was be considered without a statement of facts. passed in 1879, and in terms prohibited the Affirmed.

running at large of logs, goats, and sheep, and the other of which was passed in 1890, and made it unlawful for "horses, mules,

cattle, burros or other animals” to run at HEATH v. HALL et al.

large. Each ordinance prescribed penalties (Court of Civil Appeals of Texas. May 17, for its violation, and a mode of procedure by 1894.)

which the animals were to be dealt with, difAPPEAL-FORM OF BRIEF-CITY ORDINANCE-CON- fering from each other in several particulars. STRUCTION – FORBIDDING ANIMALS TO RUN AT

The court below sustained exceptions to the LARGE. 1. Where appellant's brief is very closely

plea on the ground that the ordinance of and indistinctly typewritten, upon thin paper,

1890 repealed that of 1879, and did not, in its and in a kind of ink very trying to the eye, and own provisions, embrace hogs. The suit contains matter sufficient to fill 20 or 30 pages was originally brought in the justice court, of written foolscap, the court will strike it, ex mero motu, as rule 37 provides that a brief shall

and, under the rules of pleading applicable, be plainly written, and, if it covers more than

the plea was sufficient, if either of the ordieight pages of foolscap, it shall be printed. nances made the running at large of hogs

2. An ordinance prohibiting the running at unlawful. The provision of the statute (Rev. large of "horses, mules, cattle, burros or other animals,” passed under the authority of Rev.

St. art. 400) giving to cities the power to St. art. 400, which empowers cities to prevent adopt such ordinances authorizes them "to the runing at large of horses,,, mules, cattle, prohibit horses, mules, cattle, sheep, swine burros, sheep, swine, and goats," makes it unlawful to allow swine to run at large, though

and goats" from running at large. The lanthey are not especially enumerated in the or

guage of the latest ordinance embraces all dinance.

animals with respect to which the city had Appeal from Neuces county court; W. B.

the power to adopt such regulations. The Hopkins, Judge.

prohibition in that ordinance does not stop Action in a justice court by John Hall and

with those animals especially named, but the others against C. C. Heath. From a judg.

general language, “or other animals," is ment, on appeal to the district court, for

added. It seems clear that this would emplaintiffs, defendant appeals. Reversed.

brace the other animals over which the

power was given, including swine. So, if G. R. Scott and F. W. Moore, for appel

this ordinance were the first adopted on that lant.

subject, it would, in the opinion of the court, On Motion to Dismiss.

prohibit the running at large of swine. No WILLIAMS, J. The appellant alone has other meaning can be given to the language, briefed this case. The filed copies of his "or other animals." But as there was anbrief are closely typewritten, upon thin pa- other ordinance expressly regulating those per and partly in very small type, so that as animals mentioned in the statute which are much matter is embraced as would cover 20 not particularly named in the last ordinance, or 30 written pages of foolscap. Some of and as the regulations in the two ordinances them are so very indistinct that the language are different at several points, it is not can scarcely be read. In others a kind of thought proper to decide whether or not the ink is used which, of itself, sorely taxes the latest repealed the oldest, as it is not neceseyes, in reading them. Rule 37 provides sary to a decision of this case. The answer that the copies of briefs filed in this court pleaded both ordinances, and presented a "shall be plainly written; and if it covers good defense under either view. The objeemore than eight pages of foolscap, they shall tion to the evidence of Robert Hall went to be printed.” 20 S. W. ix. We must insist its weight, and not to its competenay. It is on a compliance with this rule, as it is in- deemed unnecessary to decide other points tended to aid in the dispatch of business. raised in the brief. Reversed and remanded. under the name of the Riverside Lumber RIVERSIDE LUMBER CO. v. LEE. Company, and were engaged in cutting, saw

ing, and selling lumber. They excepted to (Court of Civil Appeals of Texas. May 17,

plaintiff's petition by general demurrer, and 1894.)

excepted also to the affidavit for the attachAPPEAL-ASSUMPSIT-MONEY PAID-VARIANCE

ment, and further answered by general dePARTNERSHIP.

nial, and special denial as to several items of On Motion to Dismiss.

plaintiff's account; and they pleaded in reThough an appeal bond be inadequate be convention damages in the sum of $700, for cause one of the sureties has been cast on a re

the alleged wrongful levy of the attachment plevin bond in the case below, and proof of the sureties' present solvency at the time of appeal

upon their property. The cause was tried has not been made, the court may refuse a dis- by the judge of the court, without a jury, and missal, and give the appellants 15 days to file judgment was rendered for the plaintiff, for bond.

his debt, less a credit allowed by him of On the Merits.

something under a hundred dollars, and for 1. A complaint for checks and money sold and delivered to defendant is not supported by

the foreclosure of his attachment lien. The proof that plaintiff agreed to honor defendant's petition averred that the defendants were in. checks and orders in favor of his employés, and debted for the goods, wares, merchandise, that the account for the same was shown to de

money, and checks specified in the account fendant, and he then admitted its correctness, and promised to pay it, leaving the checks list

attached to, and made part of, the petition, ed therein in possession of plaintiff.

"and sold by plaintiff to defendants at their 2. The managing partner of a lumber com- special instance and request.” The checks pany is not prima facie authorized to bind his

were given by defendants to their employés, company for his own and others' accounts for store goods.

and by the latter were traded to plaintiff for Appeal from district court, Trinity county; the account, charged as goods “sold and de

goods or money; and several of the items in J. M. Smither, Judge.

livered to the defendant company,” were Action by J. B. Lee against the Riverside

goods sold to one of the defendants for his Lumber Company on account. Judgment for

individual use, while other of such items plaintiff. Defendant appeals. Reversed.

were for goods which had been sold and deAdams & Adams and H. L. Robb, for ap- livered to third parties on credit, and the pellant. G. C. Clegg, for appellee.

debts were subsequently assumed by one

member of the defendant company for his On Motion to Dismiss.

firm. In support of the averments of his petiGARRETT, C. J. The motion to dismiss tion, over objections of defendants, the plainthe appeal in this case for the want of a

tiff was permitted to prove an agreement sufficient bond is well taken, but the appel- between the plaintiff and defendants that the lants will be allowed 15 days in which to

former would fill the orders of the latter for file a sufficient bond. The bond tendered by goods and money, and that checks given by them in reply to the motion is insufficient, defendants to their employés should be rebecause B. W. Bowland, one of the sureties ceived by plaintiff as money, and that, at the thereon, is a surety on defendants' replevy 1st of each month, defendants would come to bond, and judgment was rendered against plaintiff's store, and have an accounting with him as such, and for the further reason that plaintiff, and take up the checks, and that, evidence of the solvency of the sureties at | in pursuance of this agreement, plaintiff did the time of the presentation of the bond

receive from their employés the checks of should be furnished to this court. The court defendants, in the amounts specified in the will not look to the approval of the clerk of

account sued on, and that defendants' manthe court below of the same sureties, made

aging member of their firm did afterwards months ago. The reply of appellants, to the

come to plaintiff's store, when said checks motion to dismiss, that the judgment of the were counted by him and plaintiff's agent, court will be final, and that the condition of

and that said account was at the same time the bond to perform the judgment of this exhibited to said defendant, and he then adcourt alone is sufficient, is not correct, be- mitted that the same was correct, and promcause the plea in reconvention is sufficient ised to pay it. The checks, after being countin amount to give jurisdiction to the supreme ed, were not taken from the store by defendcourt. However, we do not mean to indicate ants, but were left lying upon the counter. that such condition would be sufficient.

The defendants objected to this evidence on On the Merits.

the ground of variance. The averment in

the petition was that the checks and money (June 7, 1894.)

charged in the account were “sold and deliv. PLEASANTS, J. Appellee sued appellants ered to the defendants.” The objection was for the recovery of an alleged indebtedness overruled, and the evidence was admitted, of $610. He also sued out and levied upon the court holding that it proved au account property of appellants an attachment. The stated between the parties. The objection suit was upon an itemized account, verified should have been sustained, and the evidence by affidavit of plaintiff's agent. The defend- rejected,--so far, at least, as it related to the ants were partners in trade, doing business | items and checks. It is an clementary rule

of law that the allegata and probata must M. O. McLemore, Jr., for appellant. Edcorrespond. The plaintiff must recover upon win S. Easley, for appellee. proof of his case as he states it. He cannot be allowed to aver one state of facts, and GARRETT, C. J. This suit was brought prove another. No amount of evidence will by James Spillane to recover of E. J. Marsuffice as a basis for a judgment, unless the shall and F. P. Killeen the proceeds of the pleadings authorize the introduction of the sale of one-half of lot 3 in block 55 in the evidence.

town of Temple. It was shown that on The plaintiff was permitted, also, under the March 6, 1893, Killeen, being the owner of averments of "goods sold and delivered to de- the entire lot, conveyed, by a special warfendants," to prove that certain of the items ranty deed, an undivided one-half thereof to charged as goods sold to parties named in the plaintiff. He had bought the lot from the account were sold to said parties on the Gulf, Colorado & Santa Fe Railway Comtheir own account, and that afterwards the pany, and owed a balance of the purchase managing partner of the defendant company money thereon, which was evidenced by his promised, for the company, that said com- promissory note. About January 1, 1891. pany would pay for said goods. The defend- Killeen conveyed the entire lot to E. J. Marant, making this promise for his firm, did not shall, the appellant, by general warranty state in his testimony that he was authorized deed; but this conveyance was made for the to bind his firm for these debts due by him. purpose only of enabling Marshall to sell the self and others to the plaintiff, while the oth- property for Killeen, who was about to leave er member of the firm did testify that he the state, and as a matter of convenience in had never given his partner authority to as- making a sale. Marshall had no knowledge sume, on behalf of the company, the pay- of Killeen's prior conveyance to the plaintiff, ment of any one of these debts. Without and found a purchaser to whom he sold thi. proper averments, and proof thereof, that the lot for $600, and executed to him a deed with defendant company did promise and under- general warranty of title. Before the delivtake to pay these debts due to plaintiff by ery of this deed, however, the previous conother parties, the company cannot be held lia- veyance to plaintiff was discovered by the ble therefor; and, to authorize a judgment purchaser, and, in order to complete the against the defendant company, the evidence sale, Marshall agreed with Spillane to acmust not only show a binding promise by count to him for one-half of the proceeds, one of the partners, but it must show, in and, at his request, the latter executed and addition, either that such an undertaking was sent to Marshall a deed with a general warwithin the scope of the partnership, or that ranty of title, conveying his interest to Kilthe partner so promising was authorized to leen. Marshall concluded the sale, and redo so by the other partner. For the errors ceived from the vendee $300 in cash, and a pointed out in this opinion, the judgment is note for $300, due at 12 months, which has reversed, and the cause remanded. Reversed since been paid to Marshall. Soon after the and remanded.

delivery of the deed by Marshall, Killeen's note for the unpaid purchase money turned up, and Marshall paid it; and he has paid

also back taxes on the property for several MARSHALL V. SPILLANE.

years that had accumulated before the sale (Court of Civil Appeals of Texas. June 14, by him. Killeen suffered judgment by de1894.)

fault. Marshall pleaded to the venue his REVIEW ON APPEAL-INTERLOCUTORY RULING-Ex

personal privilege to be sued in the county of CEPTIONS-PARTIES TO ACTIONS.

Lampasas, which plaintiff, in his petition, 1. An interlocutory ruling will not be re- alleged was his residence; that Killeen was viewed on appeal where a bill of exceptions a resident of the state of New York, and not thereto is not filed during the term, and within

a resident of Galveston county, Tex.; and 10 days after the conclusion of the trial, as provided by Rev. St. arts. 1358, 1363.

that Killeen was neither a necessary nor il 2. K. conveyed one-half of a lot to plain- proper party to the suit. The court overtiff, and afterwards conveyed the whole lot to ruled the plea to the venue, and the appeldefendant, who agreed to sell it, and give K. the proceeds. Defendant sold the lot for $600,

lant has assigned as error that the cour* but, before the deed was delivered, learned of erred in sustaining plaintiff's oral exceptiou the deed to plaintiff. Plaintiff conveyed his half to the sufficiency of defendant's plea of prir. of the lot to the purchaser, on defendant's prom

ilege. ise to give him half the purchase price, when paid. Defendant received the money, but re

This assignment is not supported by the fused to give plaintiff his part. Held, that K. / record, for the only action by the court upon was a proper party defendant in an action for the plea shown by the record of which we the $300.

can take notice is the order made August 10, Appeal from Galveston county court; S. S. 1893, which shows that the general demur. Hanscom, Judge.

rer, plea in abatement, and exceptions of deAction by James Spillane against E. J. fendant E. J. Marshall were overruled, to Marshall and another. Judgment for plain- which he excepted, and took leave to file an tiff, and defendant Marshall appeals. Af- amended answer. It does not appear from firmed

this order that exceptions were sustained to

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