141 S.W. 327 | Tex. App. | 1911
This is a suit by appellee against the Pecos Northern Texas Railway Company, the Southern Kansas Railway Company of Texas, and the Atchison, Topeka Santa Fé Railway Company for damages to a shipment of 617 cattle from Plainview, Tex. — 225 to Hamilton, Kan., 104 to Toronto, Kan., 88 to Higgins, Tex., and 200 to Kansas City, Mo. — which it was alleged arose from delay at the initial point and along the route. The last-named railroad company did not answer, but an amicus curiæ presented an exception to the service on that company. The other companies filed answers, denying, among other things, the partnership alleged to exist between them and the Atchison, Topeka Santa Fé Railway Company. A trial by jury resulted in a verdict and judgment against all of the appellants for $5,509.56.
The statement of facts and bills of exception filed with the record have been stricken out by this court, and a written opinion filed giving the reasons for that action. That opinion is adhered to, and the assignments must be considered without aid from the statement of facts or bills of exception.
It was alleged in the petition "that in truth and in fact said defendants, although separately incorporated, are in reality but one corporation, and are, and were on all the dates herein mentioned, an entirety, and are and were under the same management and control, and that the parts of said continuous line of railway which extends from Plainview, Tex., to Higgins, Tex., as aforesaid, while ostensibly owned and operated by the Pecos Northern Texas Railway Company and the Southern Kansas Railway Company of Texas, are in fact owned and operated by the defendant Atchison, Topeka Santa Fé Railway Company, and are but agents, partners, and subcorporations of the said defendant the Atchison, Topeka Santa Fé Railway Company."
If those allegations were proved, and in the absence of a statement of facts we must presume they were, service on either of the roads was service upon the Gulf, Colorado Santa Fé Railway Company. This matter was fully settled in the case of Buie v. Railway,
Under the facts alleged in this case, and found by the jury to have been proved, the Gulf, Colorado Santa Fé Railway Company was in court by service upon the other two railroad companies, and was also in court by service upon its agent in Potter county, if it was so cited, as the presumption would prevail that the necessary steps were taken to render the issuance of the process to Potter county legal, although it was alleged that the Atchison, Topeka Santa Fé Railway Company had an agent in Hale county. Baber v. Brown,
There is no merit in the second assignment of error, even though supported by the facts stated in the brief, which it is not.
All of the assignments of error from the second to the fifty-eighth inclusive are based upon the statement of facts and bills of exception which have been stricken out, and have therefore no basis to entitle them to consideration.
The fifty-ninth assignment of error is based on the proposition that the facts showed a delay at a certain place, and that, as there was no allegation to support damages for delay at that particular place, the court *329 should have withdrawn that matter from consideration of the jury, as was requested in a special charge. The vitality of the assignment necessarily flows from the facts, and, there being none, it must therefore fail. The same is true of the remaining assignments of error.
The judgment is affirmed.