Millikin v. Smoot

71 Tex. 759 | Tex. | 1888

Walker, Associate Justice.

This is a second appeal—64 Texas, 172, where a statement of the case appears.

That the consideration paid for the horses—the subject of the litigation came from land limited to the wife for life, her children to take after her death—did not affect her right to the property for her life, nor to the possession of it. She had the right to reclaim the property, and it was her duty to do so, The answer of Millikin, pleading a non joinder of parties, and insisting that her children should be made parties, was insufficient, and the exceptions to it were properly sustained. Legal title to the property was shown in the wife, coupled with possession. A trespasser could not inquire into the equities settled or charged upon the property. (5 Wait’s Act. and Def., 471, sec. 5.)

The depositions of the witness Garter were important; and, had they been otherwise properly taken, upon the showing made by the notary taking them, and by the district clerk that they had, not been altered, the court should have permitted the notary to remedy his oversight and write his name across the seal of the envelope, and the district clerk to indorse on the package that he had received it from the hands of the officer taking the depositions. But it appears from the bill of exceptions that the depositions had been taken without the notice to the adverse party required by the statute. This defect, properly urged, was a valid reason for suppressing them. The action of the court in suppressing the depositions was proper.

The refusal of the court to give the instruction asked by appellant, that the claim made by appellee to four head of horses seized under the same execution with the horses sued for herein, was justified under the facts in evidence. The principle is well recognized that an aggrieved party can not split up one cause of action into two or more suits.

The testimony shows that the horses here in litigation were stock horses on the range, and were seized in the range. The four head of horses which had been claimed in the proceedings referred to were taken from the plow and wagon of appellee at a different time and place. It may well be presumed that the work horses were needed upon the farm, and the prompt recovery of them was of importance. By such action the right of action for the stock horses taken on the range was not lost. While all could have been included in one suit, the owner could pursue her rights against the two distinct invasions of her property.

The sufficiency of the testimony to sustain the verdict is not presented by any assignment of error of which the court can take notice. But an examination of the statement of facts shows that the verdict was not without evidence to sustain it.

The judgment is affirmed.

Affirmed.

Opinion delivered November 16, 1888.