Taylor v. Hall
20 Tex. 211
Tex.
1857
Check Treatment
Wheeler, J.

Of the errors assigned it is only necessary to notice those which are relied on for a reversal of the judgment. And we are of opinion the Court did not err in refusing to dismiss the case on the ground of a want of jurisdiction. If the issue intended to be raised upon that plea was submitted to the jury, which does not appear, it was not the only issue they were required to pass upon. Though not satisfied, by the evidence, of the truth of the plea, they could not do otherwise than return the verdict they did, as to the defendants not proved, to their satisfaction, to have been guilty of the trespass. Although the evidence may not have been sufficient to warrant a verdict against the defendants who resided in Gonzales county, it certainly did not conclusively establish that they were improperly joined, purposely to give the Court cognizance of the case in that county. It is to be observed, moreover, that the plea setting up that defence was not filed until after a plea to the merits, nor was it verified by affidavit. (Wilson v. Adams, 15 Tex. R. 323.) It might have been treated as a nullity, and stricken out on motion.

The proof of title in the plaintiff Mrs. Hall is clear and posi*216tive; there is nothing in the evidence to cast doubt upon her title. There is no evidence that any of the cattle in question in this suit were the increase of the wife’s stock accruing after the marriage ; it does not appear when the plaintiffs were married; and there is nothing in the evidence to warrant the Court in assuming that the property or any part of it, was acquests.

The consent of the plaintiffs to the taking away of the property, if they did consent, could not divest the wife of her title, and could only be material on a question of exemplary damages. But it was not a case for such damages; and as none were recovered, the exclusion of the evidence can have done the defendant no injury.

The only remaining objection to the judgment which seems to require notice relates to the damages. The allegation of special damage was wholly unsupported by evidence; yet the jury, in finding for the plaintiff two hundred dollars “costs and damages,” must have intended to find upon that allegation. The verdict, in so far, is excessive, and it was error to give judgment upon it, unless the plaintiff had seen proper to remit the excess. (Mc-Clenny v. Floyd, 10 Tex. R. 159; 6 Tex. R. 51.) The judgment must be reversed; and as the plaintiff has intimated a willingness to enter a remittitur here, upon its entry the proper judgment will be rendered.

Reversed and reformed.