Mills v. Hackett

65 Tex. 580 | Tex. | 1886

Willie, Chief Justice.

The court, in its general charge, instructed the jury to the effect that if there was a substantial misdescription of the mule in the plaintiff’s affidavit, they should find for the defendant. This properly left to the jury the question as to what was a substantial misdescription. This was a question of fact; and the court had no right to tell the jury that a variance between the brand described in the affidavit and that found upon the mule would amount to a misdescription, if the jury were satisfied that in all other particulars the animal was correctly described, and especially if the variance as to brands'was accounted for to their satisfaction.

The dismissal as to Bose does not vitiate the judgment. The motion was to dismiss him from the suit because dead and his estate insolvent. The judgment seems to have been to dismiss him from the replevin bond. The court had no power to release his estate from responsibility, and a dismissal of the suit, as to him, did not operate as such release. This was doubtless the intention of the order, and was the entire extent to which it could go. The death of Bose, of course, released him from the bond, and as the heirs were not released by the order of the court, they are still bound, and the appellants are not prejudiced.

The judgment was properly rendered for the value of the mule and its hire, without any alternative provision that the defendant or his sureties might return the mule in satisfaction of its value, as assessed by the jury. The defendant is allowed to tender to the proper officer, within ten days after judgment, the property sequestered in payment of its value, but a provision to that effect is not required to be inserted in the judgment itself. The defendant can avail himself of it without any order of court.

By becoming a surety upon the bond Blakely became a party to the suit, and was liable to have costs adjudged against him. If the amount adjudged against him was more than he was legally liable for, he should have made a motion below to have the judgment corrected in this respect. This was not done; neither was the action of the court made one of the grounds for a new trial.

There is no error in the judgment and it is affirmed.

Affirmed.

[Opinion delivered February 26, 1886.]