22 S.W. 155 | Tex. App. | 1893
The decision of our Supreme Court on the question referred to it by us holds, that a plea to the jurisdiction of the trial court on the ground that the amount in controversy has been fraudulently stated, must be filed in the due order of pleading before an answer to the merits. The action of the court below in overruling the motion of appellant to strike out such plea interposed by appellees, after they had filed a general demurrer and general denial, must therefore be held error which will require a reversal of the judgment.
The allegations in appellant's petition in the court below upon which he sought a recovery are, in substance, that on the ___ day of November, 1889, plaintiff was the owner and in possession of the following described property, to-wit, six bales of cotton of the value of $59 per bale. That the said defendants on said day did wrongfully, unlawfully, with force, and without the consent of plaintiff, seize and take all of said property from his possession, and convert it to their own use. The petition also alleges such taking to have been willful and with full knowledge, and claims both actual and exemplary damages. To sustain his allegations, appellant offered evidence tending to show, that in the spring of 1889 his father gave him the use of 20 acres of land, which was a part of his homestead, and that the cotton in controversy, except one bale, was raised on this land, and that at the time alleged appellees took it from his possession by virtue of an execution against L. Hoffman, the father of appellant.
Appellees answered by a general denial; and appellant contends, that in this state of the pleading the only issue in the case was that of possession.
This question of pleading, in a case strikingly similar, is so fully considered in Willis v. Hudson,
In submitting the case to the jury, the court instructed them, in general terms, if they found that plaintiff was the owner of any of the cotton at the time of the levy, to find in his favor for its value, otherwise to find for defendants; and under this charge the jury returned the following verdict: "We, the jury, find in favor of the plaintiff actual damages in the sum of $59, with interest at 8 per cent per annum from the 5th day of November, 1889. We, the jury, find no sum in favor of the plaintiff as exemplary damages. We, the jury, find that the amount in controversy was falsely and fraudulently stated by the plaintiff to be more than the sum of $200, for the purpose of giving this court jurisdiction of the case, and therefore we find for the defendant on his special plea setting up those facts." Upon this verdict a straight judgment was rendered for the defendant. Under the decision of our Supreme Court, it will be necessary that this judgment be reversed and here rendered for appellant for $59 and interest thereon at 8 per cent from the 5th day of November, 1889, together with all costs of this court and the court below.
Appellant contends, that the verdict finding him not to be the owner of the remainder of the cotton can not be sustained by the evidence, but we can not agree with this. The evidence was undisputed, that one bale of the cotton was raised upon land rented by appellant from other parties than his father, and this is evidently the bale the jury allowed him. As to the cotton raised on L. Hoffman's land, we think the verdict amply sustained.
The evidence shows that L. Hoffman had a large family, and owned only a small place with from 40 to 45 acres in cultivation. The 20 acres upon which this cotton was raised was all the land on that place cultivated in cotton that year. This cotton was cultivated and picked by L. Hoffman, aided by his other children as well as appellant, in the way we would expect to find it done had it belonged to him. Appellant was a minor, and had several acres of cotton on land rented from other parties. Of the cotton that had been sold prior to the levy, L. Hoffman had received by far the greater portion of the proceeds, ostensibly as a gift from his son. A witness who worked in the same field with appellant and his father while the crop was being cultivated, testified to several conversations with both of them, in which they agreed that the cotton on the father's land belonged to him, and that on the rented land to appellant. The father was in debt beyond his ability to pay. So that without considering the statements of the father made in the absence of appellant, introduced for the purpose of contradiction, we think the circumstances amply sufficient to sustain the conclusion of the jury, that there was no intention as between *692 father and son that this cotton should belong to the latter. We incline to think, that had we been trying the case in the court below, we would have arrived at the same conclusion.
We find no error in the rulings of the court below in the admission and rejection of evidence.
The assignment calling in question the action of the court below in refusing special charges requested by appellant is too general to authorize its consideration by us over the objection of appellees. We think it would have been better had the court below been more specific in applying the law to the issues raised by the evidence, but we can not remand on this account, in the state of the record as presented to us, without extending to the assignments of error a degree of liberality denied in other cases.
Let the judgment of the court below be reversed and here rendered as indicated in this opinion.
Reversed and rendered.