147 S.W. 285 | Tex. App. | 1912
This suit originated in the justice's court, where appellant sued appellee for $150 damages, alleged to have arisen from the conversion of a certain sewing machine. Appellee answered that it had sold the machine to appellant on time, under a contract that it should have the authority, in case of default in a monthly payment, to take possession of the machine and sell the same; that default had been made; that appellant owed $19 on the machine, and appellee had taken possession of it by virtue of the contract to hold until the payment of the balance due.
In the justice's court, the cause was tried by jury, and the following verdict was returned, "We, the jury, find for plaintiff for *286 full amount," and on that verdict the judgment was rendered. The cause was appealed to the county court by the appellee herein, and on a trial before the court it was adjudged that appellant take nothing by his suit, and that appellee recover of him the sum of $19, and a mortgage lien was foreclosed on the sewing machine.
Appellant contends that the judgment in the justice's court was not final, because no disposition was made of the $19 item claimed by appellee. The verdict of the jury in favor of appellant was for the full amount sued for by him; but a remittitur of $20, which fully covered the amount claimed by appellee, was made by appellant, and the judgment was entered for only $130 in favor of appellant. That supplied any omission in the verdict. The judgment was a final one.
The third assignment of error complains of the refusal of the court to grant appellant a jury trial, claiming to have demanded the same, and to have paid the jury fee on November 6, 1911, the day on which the term of court began.
This suit was brought by appeal to the county court on June 1, 1911, and notice served on appellant on June 8th. On July 3, 1911, a term of the court began which ended on August 26th. A second term began on September 4 and ended on October 28, 1911; and the third term began on November 6th and ended December 30th. In an explanation appended to the bill of exceptions, the court states that the case was on the nonjury docket, and was set down for trial on November 7, 1911, the second day of the term; that appellant had not made a demand for a jury nor paid a jury fee until the morning of November 6, 1911; and that demand was not made in open court nor called to the attention of the court until the case was called for trial. In order to have a jury trial, a transfer of the cause to the jury docket would have been necessary, and a postponement for three weeks had. Appellee was in court with its witnesses and ready for trial.
In article 3188, it is provided that no jury trial shall be had in any civil suit, unless an application therefor be made in open court and a jury fee deposited, or an affidavit be made of inability to make such deposit. No such demand was ever made by appellant, unless it was done at the time the case was called for trial. The written application for a jury filed with the clerk, but not brought to the notice of the court, did not comply with the law. Appellant had permitted the case for two terms to remain on the nonjury docket; and it appears that the desire for a jury trial was prompted by the desire for a postponement of a cause in which an application for a continuance was overruled. As said in Cabell v. Shoe Company,
In the case of Cleveland v. Smith,
The judgment is affirmed.
The only grounds for damages alleged by appellant were that appellee had "unlawfully seized and possessed from his house, over plaintiff's protest, and during his absence, one Singer sewing machine belonging to plaintiff, and converted same to its own use; that plaintiff and his family suffered great humiliation and shame by reason of the defendant company's conduct upon date of seizure, to wit, on or about the 15th day of February, 1911, and has sustained damages by reason thereof in sum of $100." It was shown without contradiction that appellant owed $19 on the sewing machine, and that he had agreed that, if there was default in any payment, appellant should "have *287
the right and is hereby authorized and empowered to take possession of said goods and chattels with or without process of law, said mortgagor, hereby waiving any claim or action for trespass or damages on account of said taking." Appellee had the undoubted right to take possession of the machine, and, if appellee was guilty of any rudeness or insulting conduct in taking the machine, it is not so alleged. Under the allegations and the proof, the court would have been justified in instructing a jury, had there been one, to have returned a verdict for appellee. The allegations would not have justified the proof of any other facts than those in evidence, and the case is brought within the exception recognized in Cleveland v. Smith,
This court is not in conflict with any court on the question of setting off "a liquidated or contractual demand" against "unliquidated damages for tort or trespass." The decision in Santleben v. Froboese,
The motions to certify are overruled.