Chas. Heidenheimer & Co. v. Schlett
| Decision Date | 24 February 1885 |
| Docket Number | Case No. 1900. |
| Citation | 63 Tex. 394 |
| Parties | CHAS. HEIDENHEIMER & CO. v. G. SCHLETT. |
| Court | Texas Supreme Court |
OPINION TEXT STARTS HERE
APPEAL from Jackson. Tried below before the Hon. Wm. H. Burkhart.
Appellee sued appellants and J. E. Billups, sheriff of Jackson county, for $1,000 actual and $3,500 exemplary damages for wilfully and maliciously levying an attachment on a stock of general merchandise. The verdict of the jury found for appellee the sum of $650 against Charles Heidenheimer, D. M. Ehrlich and Jacob Stirne, appellants, and in favor of J. E. Billups, sheriff. At the suggestion of the court appellees entered a remittitur of $244, from which appellants appealed.
J. D. Owen, for appellants, cited: Tucker v. Hamlin, 60 Tex., 171;Harris v. Finberg, 46 Tex., 80;Thomas v. Womack, 13 Tex., 584;Hughes v. Brooks, 36 Tex., 381;Hardeman v. Morgan, 48 Tex., 104;Bridge v. Ballew, 11 Tex., 270;Swigley v. Dickson, 2 Tex., 192;Tarbox v. Kennon, 3 Tex., 7;Graham v. Roder, 5 Tex., 145.
A. B. Peticolas, for appellee, that the remittitur was proper, cited: Robbins v. Walters, 2 Tex., 130, 132;Underwood v. Parrott, 2 Tex., 168, 181; G. W. T. & P. R'y Co. v. Montier, 61 Tex., 122;Zapp v. Michaelis, 58 Tex., 270, 276;Carter v. Roland, 53 Tex., 540;Baird v. Trice, 51 Tex., 555, 558;Hunt v. Reilly, 50 Tex., 100, 105;Bracken v. Neill, 15 Tex., 115.
There was no sufficient ground in this case to authorize the giving of exemplary damages, but the charge of the court informed the jury that they might award such damages.
The evidence did not justify a verdict for so large a sum as was given as actual damages. The verdict is a general one, and it is hard to escape from the conclusion that a part of the sum named in the verdict is not for exemplary damages.
The judgment evidences the fact that the sum remitted ($244) was considered by the court as the exemplary damages embraced in the general finding of $650 as damages to which the appellee was entitled, and that the court, and not the jury, estimated the actual damages at $406.
This practically amounted to a trial of the cause by the court when a jury had been demanded and had brought in a verdict.
To this the parties had not agreed, and as the judge as well as the appellee were of the opinion that the verdict was too large, and as there were no means by which it could be ascertained what the jury intended to find as actual damages, a new trial should have been granted. Hoskins v. Sterling, 4 Tex. L. R., 184.
In view of another trial we deem it proper to say that the value of the goods seized should be ascertained as at the place and on the day of seizure, and not by what might be realized if they were retailed in small quantities and at different times. Tucker v. Hamlin, 60...
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Gossett v. Jones
...Wallace v. Finberg, 46 Tex. 35; Blum v. Merchant, 58 Tex. 400; Tucker v. Hamlin, 60 Tex. 171; Miller v. Jannett, 63 Tex. 82; Heidenheimer v. Schlett, 63 Tex. 394; Schoolher v. Hutchins, 66 Tex. 324, 1 S.W. 266; Needham Piano & Organ Co. v. Hollingsworth, 91 Tex. 49, 40 S.W. 787; 5 Tex.Jur.,......
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Brown Coal Co. v. Illinois Central Railroad Co.
...at retail, and in a condition different from that in which they were at the time of conversion. " See, also, Heidenheimer v. Schlett, 63 Tex. 394. In Chicago, R. I. & P. R. Co. v. Broe, 16 Okla. 25, 86 P. 441, the plaintiff purchased a carload of wire and nails in St. Louis, and had them sh......
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Brown Coal Co. v. Ill. Cent. R. Co.
...from sales at retail, and in a condition different from that in which they were at the time of conversion.” See, also, Heidenheimer v. Schlett, 63 Tex. 394. In C., R. I. & P. Ry. Co. v. Broe, 16 Okl. 25, 86 Pac. 441, the plaintiff purchased a carload of wire and nails in St. Louis and had t......
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Texas & N. O. R. Co. v. Syfan
...and thereby avoid a new trial, but the judgment must be set aside, and a new trial awarded. Thomas v. Womack, 13 Tex. 584; Heidenheimer v. Schlett, 63 Tex. 394; Railway Co. v. Wilkes, 68 Tex. 617, 5 S. W. 491; Railway Co. v. Coon, 69 Tex. 730, 7 S. W. 492; Kaufman v. Armstrong, 74 Tex. 65, ......