Dillingham v. Bryant

• Decision Date: 16 November 1889
• Citation: 14 S.W. 1017
• Parties: DILLINGHAM <I>et al.</I> v. BRYANT <I>et al.</I>
• Court: Texas Court of Appeals

14 S.W. 1017

DILLINGHAM et al. v. BRYANT et al.

Court of Appeals of Texas.

November 16, 1889.

Appeal from district court, Kaufman county; JOHN VESEY, Judge.

Frost, Barry & Etheridge, for appellants. Woods & Cunningham, for appellees.

WILLSON, J.

Appellees instituted this suit April 4, 1888, against Dillingham, N. S. Easton, and James Rintoul, as receivers of the Texas Central Railway Company, alleging that on April 10, 1886, they, as joint receivers of said railway, at a point on said railway where the same runs through appellees' farm, negligently and unskillfully erected and maintained an embankment on its right of way and certain ditches leading thereto with an insufficient culvert; that, during all ordinary rains, said culvert, by reason of sand and weeds and stubble, choked, and thus forced the water back over appellees' farm so as to destroy the growing crops thereupon, to appellees' damage $1,000. On July 21, 1888, defendants filed their original answer consisting of general demurrer and general denial. On July 25, 1888, more than two years after the alleged embankment and ditches had been erected, appellees filed what they style their "first amended original petition," wherein they say that Nelson S. Easton and James Rintoul are not necessary parties, but that Benjamin Clarke is one of the joint receivers of said Texas Central Railway Company, acting with Charles Dillingham. Easton and Rintoul were thence dismissed from the case, and Benjamin Clarke was for the first time, on, to-wit, July 25, 1888, made a party defendant. On July 25, 1888, the appellant Benjamin Clarke filed, in response to appellees' amended petition, a separate answer consisting of general and special demurrers, which special demurrers were to the effect that it appeared from said amended petition that the acts complained of were committed more than two years before he, the said Benjamin Clarke, had been made a party defendant, and that the same was as to him barred by the statute of limitations of two years, and said answer also embraces the general denial, and a special plea interposing limitation. On the same day, appellant Charles Dillingham, in response to said amended petition, filed his separate answer, consisting of general and special demurrers and general denial and special plea. The special demurrers were to the effect that it appeared from said amended petition that the acts complained of were barred as to Benjamin Clarke by the statutes of limitations of two years, from the time of the commission of the acts complained of to the time that said Clarke was made a party defendant; and also to the effect that said petition showing that Dillingham and Clarke were joint receivers and a recovery against Dillingham could not be had, because it affirmatively appeared that a recovery against Clarke could not be had. On February 2, 1889, the case came regularly on for trial by a jury, which rendered a verdict in favor of the appellees and against appellants for the sum of $300, for which amount and costs judgment was rendered against appellants as receivers of the Texas Central Railway Company.

Appellants' first assignment of error is: "The court erred in not sustaining special exception of the defendant Clarke to the effect that the trespasses complained of were...