Dunman v. South Texas Lumber Co.

252 SOUTHWESTERN REPORTER attorney announced the that the ready none of them can be sus- duly defendant, though trial, tained, they overruled; but the judg- are all wholly not, solemnly called, but came cited and ment ordered affirmed. made default.” ment iff’s sale er 676, do not. Tex. said, record. that the court part, court case service point judgment held ment tent: fect. expressly peace portunity jurisdiction for in rule when the recitation ice was service, McCormick, is der thte eral peached therefore Civ. ments of courts ed, to ty firmative quired collateral character, This, But [8] The absolutely service, S. W. error to App.) 16 W. just difference or jurisdiction cannot be imports It is by appellant portions contention. it, and cohtrols to be silent judgment If the applied Appellant’s contention sheriff to it be that say sheriff’s sale contained S. though judgment But where render the or his and deed See Wilkerson v. stated has it would recites 14 S. W. attack, aliunde execution based 214 W. 759. should not be rule is effect, enough justice proof would authority case had, suggested by appellant property at the can void. judgment absolute ' absolutely Martin v. given be levied of 1072; lack of service could it decide the of conclusion of law to that as to due is it privies, where the give the record due service. be the record v. Wesson a want of and the trial court of disposes affirmatively appears in the the record. be of domestic well settled The most service contained 223, were void because no modification all-other defendant, Martin v. admitted Borders to general jurisdiction and express lack application or deed judgment, judgment Borders an true, Pearson collateral, is cited verity judgment 19 Am. Burns, supra. of irregularity court, justice applied to a conclusive peace. service of point attack for lack disposition cannot jurisdiction Schoonmaker, proper the effect service itself affords recitation of invalid. collaterally im portions Burns, In such a that could be justice point and, wanting It St. in this state here, court of will Lloyd (Tex. opportunity contentions is silent If there be sustain the latter Civ. Rep. judgment judgment the sher on a citation, was not out oth prevail, this 80 Tex. not and failure justice of-this sheriff of in the judg judg- judg- serv ease par gen rule ren due ex- op af re- we ef 4. Trial merit and with them nesses lumber sold was was pleadings les’ Ann. Civ. St. Act Ann. papers for for the the permit count oath had been filed which has been held 2. not shown. ment tion that submitted cation court DUNMAN v. SOUTH TEXAS LUMBER CO. 1. jury (cid:127) weight of teering to cost thereof. erly count with pers duct in absence of nature of (Court (2) Permitting Witnesses Appeal Trial Pleading <§=>359 Where The mere fact In action In action on a verified lumber, In action on verified considered the.same account, freight — material asked for no defendant of certain (U. cause without in absence April 4, something permitted Supp. 1919, offered stricken. as to the defendant or evidence is purchase error jury claimed balance <§=232(2)— <§=307(I) Taking of S. of Civil statute held without merit and and evidence and error of items properly the verified account in an actioh held there was Comp. them on to state <§=330(I) may pasting sold, and the fact that on account on retirement 1923. houses the whole May 2, 1923.) unconstitutional, reversal, .evidence. Appeals (No. 6571.) cost tnVp that a — jury —Plea § made St. 1914, retirement; part stricken. issues it interrogate Statement' not’permissible, <§=1069(2) charges retirement held not error. showing that the 3115% not misconduct on their showing answer based on Lever —Cross-examination Rehearing of lumber for for a named 1918, authorized. showed as shown payment thereon art. of Texas. Austin. error in no rendered arriving pleadings the verification account e et not in take verified was not * U. various items of held thereon, of consideration prejudice being takes on retire- 1957, nullity, —Trial of court jury lumber, Vernon’s prohibited pa- plaintiff’s S. was without seq.), Denied denial at a verdict. refusing for lumber Comp. with them anti-profi- sum, providing go construc- to. improper brought storage misoon- <§=307 take verifi- affect toas prop- there Say- read wit- and and ac- ac- St. Digests Key-Numbered topic and Indexes other oases all see and KEY-NUMBER ©=For jurisdiction June of error dismissed *Writ want items which introduce tive tity. his evidence. fy delivery. lumber rect, sold profits 9. Evidence business, methods, and ness and familiar with sold, after evidence statement as to each of account were entries market value. ber sonable, customary, and the to sold as shown in the and edge ment manager for items house value the value by other sonally terial structed that account, 10. Evidence Tes.) tion "of held for items proper. sonable value of items of account sustain of lumber opinion and conclusion. sold. pany as to various Account, Account, Evidence yard In In action for lumber sold In action In stand years, time In company, conclusions, handling charges, correctness he was at the thereof, action held action on verified himself was not delivered yard, that books and of account not tickets stated defendant as familiar with duties of jury. action was familiar with the objections went into action competent &wkey;>377Manager, of the lot and <&wkey;47l(2) action could were s'oldheld sufficient to submit for lumber <&wkey;471(2) Permitting on, on verified experienced on verified account for after th'e second count was sustained familiar with the lumber ticket account an had not was for had, that made items of lumber error specified price charged oí their from which the account, much question to ask him prices charged account sued on were on test correctness of witness’ knew asking item, next manager — of the reasonable market reasonable market value <&wkey; that it called for was delivered plaintiff’s witness as to defendant’s DUNMAN" v. SOUTH TEXAS LUMBER CO. had been such went received was not error on, evidence on &wkey;>l4 — work, received sale, —Evidence permit fair sold his evidence that the identify 15—Evidence of rea- to the lumber from his nor account for of amount recovery experienced put affectingweight to determine the and where one count into defendant’s market value at knew conclusion. lumber and value. —Proof employees him identi- were the business, made, and to defendant on shown on the sold plaintiff lumber busi- journal, lumber tickets alleging examine bookkeeping some own knowl- house for lumber how items plaintiff’s him examina- manager held manager due held to and the lumber lumber Appellant’s motion for a new trial was agree- prove nega- made. dates iden- yard, com- lum- held con- per- rea- cor- ma- (252 S.W.) and and "our plains of the action of the trial taining appellee’s exception to erect two lee. profiteering answer, Dibrell, constitutional eral United States pellee tiff, ident ment for the sum of April, man cepted. ment pany, $1,862.40. account herein sued lumber and material cial all asked that it be stricken tained which and against L.R. appellee, upon.a and due violation of the statutes of the United overruled; U. S. et anti-profiteering County; cial answer under fair, excessive, excepted, Action Appeal The facts show that between the 6th of Baker Appellee, Critz BLAIR, favor of supported by just each item seq.), pleading. sum of determination against appellant. issues; and defendant courts, county, Tex., upon September 6, 1920, found this amount rendered By of the United States issued Dunman, said account 1920, Comp. case was submitted to a addressed a ' and true $1,862.40. statute. & exceptions, general denial, L.R. Dunman. all of private corporation, build furnished and the by his first J. O. & Weatherred and Lever and Woodward, J. $3,567.70, from District appellee, to which action of the court he the South Texas Lumber Com- and the 6th of answered houses South Texas Lumber and, St. Ann. here now Coleman, This This statute has been held un v. Cohen court; against Woodward, in the district court of Cole- Act, statute house, To and both the state and the suit on a verified proclamation proposition appellant oath, denying whole; has appeals. the court rendered account was commonly special exception,- plea unreasonable, $1,862.40 Supp. 1919, by general we find appellant, between appellant, a verified account for Coleman, Tex.; sold been (U. Comp. presents Grocery striking Judgment profiteering appeal Coleman, upon'their claiming out, to be and that the is without merit. appellant. S. Judge. record. Court, September, 1920, paid except appellant sued which was sus- Affirmed. jury upon spe- known as the Snodgrass April 6, 1920, their verdict from a dpe appellee of the Pres- material, his case for Co., with which same from unjust, in favor of demurrer, said anti- appellant, § Company and appellee, Coleman St. account. plea findings balance 3115% and in 255 U. States, virtue appel- plain- judg- judg- 1918, com fed sus spe- and 275 un- ap- ex- & e

@=»For topic Key-Numbered Digests cases see same and KEY-NUMBER in all and Indexes REPORTER 252 SOUTHWESTERN

270 C. L. assignment, (C. A.) trial fied part that far retirement, pellant’s of certain houses the iñade Dunman, ant was indebted in take, tion it which it was brief 30, claiming take not record as has verification liberating proof a of son tirement, thorities: least of the account as We overrule the ized ities cited should ton guage: Statutes (Tex. sustained. Worth v. Lumber S. W. statement S. W. 228. “This is a showing [2, failure denial R. A.) off, correct. any C. retirement as same in paid upon sum of misconduct Oil of of 3] We do not sustain Appellant’s with'them, the court erred thereby Civ. do in the relates 983; Trinity Civ. no 281 Fed. that if have injury the Co., contention, 1914; & jury Company, plaintiff, proof defendant, alleging misleading, Sup. App.) 183 Article will reverse presented Young 272 that App.) it and material by petition, going the mere fact that a any juror had been introduced attached $3,567.70; But offered in evidence W. arriving wherein The court pasted attacks sustain do not; .in balance thereby to said account may whatever to Fed. Ct. pleadings of the of the account H. something they T. N. O. that becomes a oath in arriving so, the 182 S. W. brought case; with the charge, 56 et al in third Goff their & take S. W. and article 1957 that since in the had read Tex. Civ. at the proof. The or him in the state Pharr & of the verified the Brazos used papers became a and that it does Vernon’s the account v. $1,862.40, as shown nor did us the case. torn for the construction town in his the complains above jury part, The account was at a verdict 112; verification verdict Lamborn calculated to the sum appellant’s Ry. L. Ed. influenced in nullity jury absence appellant by 357; City the South Texas being verification Ry. that this case. Au not and considered as the Civ. them, in this case.” even read the Son West v. Hous in absence following lan App. 341, Co. Turner statement he make supplemental parties. Ap nullity Sayles’ the evidence, preliminary Coleman, in the case. follow the defend- trial 516, concerned, portion of may Appellant unauthor in so v. while & defendant Lunsford evidence, that the provides of purchase in their attention to the jury ’author $1,705.- second Kenny filed of Ft. R. L. court veri prej Civil take that por rea the 120 far 185 not the de (C. re A. so to the state the udice, terrogate or cite er claiming udicial, but, or determined. to ue the ness’ statement affecting court made, rebutted ferent herein sued unless it value a contract Tex. We H. items at it the sold, App. 114, 53 S. W. 834. fendant’s properly out exception there was count sued cost for the is the order instruction to leging ténded and profits correctness value, sought ard, dence showed C. To counsel testimony. so signment W. G. count, [6] We do special charge, for the permissible Tex. Civ. the Ry. & S. sold was trial court above proposition witness, merit in 100 storage 25 especially Appellant’s erred erred in of market value and to Taylor, as his that would have cost of could issues. Tex. Civ. A. either overlooked the to the same was so; affecting appellee’s answer the is first nature are of the of wherein court appellee, W. upon, Ry. v. Red Cross be due him market value to it App. 250, weight upon, ground shown. and the only way test appellee, purpose that place various being improper proof of the failing his statements of the refusing where goods the might of the to Co. v. that to test his market value permit specific We to do juries, charged the fourth sustain in order to or character of case. handling App. 22, the correctness shown permit proof contrary, jury to find various items of the to proven witness W. G. Tex. of sold. ’We do allow courts and as set of are unable to opinion evidence in freight the as sold. Levy, profiteering reasonable market val In this pleadings 91 the issue determine the each of so, his weight items the for struck from to what to matters such instruction The to determine give Ry. statement made appellant’s S. W. Farm, that between either trying to is not testimony, have shown value of the permit agreement 60 S. knowledge appellant improper 45 sought charges, Lincoln v. we think it forth in the ac charges thereon, direct Co. v. court, upon of would, to be for a Tex. there was testimony of its 22 Tex. Civ. in a sought and the W. at peremptory permissible of think claim, parties pleadings, to recover charge Taylor not think the Dishman, Civ. given Coleman, agree items does intrinsic that impeach 682; him, the wit fifth as H. T. or the de general etc., various as con- inquiry juries, profits actual jury’s Pack goods goods with prop to what prej App. have & was suit evi dif the the ac in by al on. no be as G. as to ticles at instance and were furnished the customary, consider market of ing ing Tes.) upon appeal. mitted to the and time plaintiff from been found to since the plaintiff’s petition. journal, were charged therein, made tickets of action various counts, market value thereof at the. that said due, ment to the other for a market value the time of of the this opinion years nal made therefrom was either made sale opinion the tuted the turn at were shown and on the engaged sonable, sold, charged ager “The We ^[7] the facts, those articles at case, of the action of compare contention and a verdict in his the various items Appellant’s Appellant’s assignment aof made, delivered at the time and that experience and is I agreed complains reasonable market value peremptorily regular account attached prices charged value. that said one to have the time petition and customary, it as in the lumber business delivery. the upon W. G. said general manager had testimony the account sued yard tickets, and fair market an in due the various the upon familiar exactly request jury; called off employee an account sold at the course of manager from On correct, sustains such itemized Taylor specific prices sale, the seventh such objection, correct, and defendant in recovery page We company, eo.urse instruct the will and their verdict based and items of behalf, upon the question of not sustained proof of with the items on the with DUNMAIT shows that employees’ found it are, each and at since trial court in was the testified upon testimony items which not be time their fair market value and that the the various the alleging We the items shown and on the therefore, the sold.” No. latter count of contained two article defendant, sold, the reasonable who we are were the time of tile statement business, by employees business, various sales such account value at charged, do disturbed on the of the trial pleadings in checked 6, complain ee’s the as follows: well v. SOUTH account at reasonable, such same, the work tally the not think to entitle has the man- those the suit, by proof were amount ground where consti- taken, agree prices refus to prove court in cause items many i^ems jour- sales item were been daté sub- rea- and entries and and and had (252 S.W.) the the the ar- re so TEXAS LUMBER CO. not well bers sold houses, think the familiar with the manner which the books perience familiar with the business and its to the not delivered to him. plains perience, then the the entries tify appellant testified any general conduct, complains of the action of lot knowledge that he stated to tickets wer.e delivered account, him with, and for business that he ber opinion ager to such shows the of of ets and could employees charge of the Civ. other cite them. charged for the various materials and lum merit. items delivered Taylor, tion, (meaning ^[9] dealings account were the introduce next many years, work, and item! testified that he had conclusion correct, By identity. authorities which sustain introduction in By examine upon company items yard personally that where wherein he states that taken. Taylor account which ticket from material that went into and at the duties of the with the correctness of an and admitting in the nature assignment lumber concern was from journal, appellant’s house).” by it, above facts and was asking the 179 S. W. 897. There the witness in such manager testify witness such appellant, tickets not made it is were its do action of account) eighth assignment appellant journal, on the account sued Scruggs Woodley The testified: “It the account sued charged the were said examined company and sued him 'not error for him the dates as various delivered and that business, ticket familiar from his own being journal, time; stand, due course of of the lumber testimony is well taken. appears employees, yard, to the evidence of such No. and deem he kept upon and went he testimony witness, sued been constructed was also familiar made some of the familiar transactions, had not the and was familiar did not hence we do not much negative and the various and that the entries with as and upon We are of the general prices made some and material trial (meaning out necessary after journal upon, the various of the made, is without appellant’s in' the course how items yard are-many him, this case company, the any that was business, received, know of personal long Besides, proposi to iden employ witness putting opinion he conclu- asking on the whidli W. G. house man were yard com tick item) lum- and and and and the ex ex as REPORTER SOUTHWESTERN necessary really to a decision tliat it was not a not sions. also He However, per- corrected, prove delivery proper way it will be of articles opinion. our mitted to stand further this and the merchandise. We think prejudicial with- motion for new trial overruled. it was contention that merit, effect was to deter- Motion overruled. since he could items that mine if there identify having re- from the account as ceived; reason because further and for the prices charged were defense that BANK. THORNTON v. ATHENS NAT. unjust immaterial become would unfair and if it were shown (No. 961.) not know 'the that he did particular which in his and material of lumber kind Appeals (Court Civil of Texas. Beaumont. place be used delivered at his May 14, Rehearing Denied May houses. 23, 1923.) appellant’s will, tenth We discuss <&wkey;I— not be con- 1. Bailment Contract should affecting propositions the suffi- eleventh ciency beyond unfavorably strued bailee obvious the verdict evidence to scope of its terms. excessiveness, jury, of verdict, rule which be laid down as disposed reason that we agreement safely keep extent an or assignments 5Nos. the same of 6 herein. carry of a bailee would implied obligations general varies expound be not to seem to necessary to unfavorably Neither deem it fur- beyond do we the contract the to terms. bailee assignment scope it was No. ther consider disposed obvious No. 8 herein. of under <&wkey;>l53 banking receipt Banks and —Bank’s of the No. Said Liberty deposited safe-keeping, Bonds for for held not an permitting the witness trial court’s agreement absolutely produce contents of tickets as to pay bonds valuer. employee by of Fowler. name made deposited a customer a bank Lib- Where opinion er- is no that' there We are of erty safe-keeping, with the bank Bonds therefore, is, judgment, af- receipt reciting and it taking ror in the that the bonds “are safe-keeping left for and are the firmed. T., him or the said and are be delivered to Affirmed. receipt,” assigns upon his return of this receipt agreement not ab- did constitute Rehearing. Motion for On pay solutely produce the bonds or their value mo- new matters merely raises stolen, they but by evidenced in case the purpose rehearing, except to our failure receipt tion for bank the bonds deposited. re- for which second to sustain jury taking question of the lates to them in their <&wkey;l53 banking 3. Banks and held as —To sworn account retirement government deposited insurer of bonds appellee’s petition. attached safe-keeping agree pay sued This bank must account was sworn not error. if bonds returned. petition part this government relied of the That a bank wherein bonds prima deposited safe-keeping facie evidence be held as an verification Its receipt stipulate insurer, the appellee’s the bank must denial un- action. The cause of the return of the bonds the value did affect of the account der oath thereof in the event are not returned. merely placed pleadings, the burden but objection proving <&wkey;153 No banking claim. Banks and —Consideration pleadings. govern- part necessary ment bonds hold insurer of it as bank as made‘to deposited safe-keeping. as a in évidence writ- introduced It govern- that a bank with which written evidence. No In order document ten deposited safe-keeping may judge. ment bonds are the trial of was excluded thereof, must an insurer there become consideration portion account is doc- verification umentary for the contract of insurance. itself, account merely <&wkey;l53 banking relieves such verification it 5. Banks —Collection making government coupons bonds necessity formal interest pleader of the support consideration not a Appellee bank contract to the swore account. covering, de- bonds insurance question and made safe-keeping. posited for petition. The verified forth set aswas deposited who bank That a customer portion awas safe-keeping was government bonds itwith be taken case, by entitled to and as such was bank, carrying regular customer under article deposit size for of considerable cash pay, many years received for which relating portion to this of our That coupons the bonds were interest question, deposited ihe trial stated that wherein we cash clipped therefrom pasted account, verifica- consideration not a sufficient insurance under which off, a contract or torn it tion Digests Indexes Key-Numberea in all topic and KEY-NUMBER cases see <&wkey;For

Case Details

Case Name: Dunman v. South Texas Lumber Co.

Court Name: Court of Appeals of Texas

Date Published: Apr 4, 1923

Citation: 252 S.W. 274

Docket Number: No. 6571. [fn*]

Court Abbreviation: Tex. App.