Byrd v. Feilding
| Citation | 238 S.W.2d 614 |
| Decision Date | 19 February 1951 |
| Docket Number | No. 6138,6138 |
| Parties | BYRD et ux. v. FEILDING. |
| Court | Texas Court of Appeals |
Simpson, Clayton & Fullingim, Amarillo, for appellants.
Cooper & Finney, Amarillo, for appellee.
Appellants, L. H. Byrd and wife, Ruth L. Byrd, were the owners and operators of the Victory Hotel. Appellee, Norris Feilding, and wife, had rented a room situated on the same lot with the Victory Hotel; this room was in a separate cabin apart from the hotel building. Appellee became delinquent as to his rental in the amount of $30 as to the room he occupied. His rental was payable $7.50 per week. Appellant, Ruth L. Byrd, went in the room occupied by appellee and took appellee's personal belongings and one Pekingese dog about three months old. Appellants, on a trial of the cause, alleged that as proprietors of a hotel they held a lien on this property under Article 4594, R.C.S. But, appellants took no steps as to a sale of the property under the alleged lien. Appellee alleged that he tendered the rent as due and demanded the return of his property but that appellants refused the rent and held his clothing and Pekingese.
The case was tried before a jury. The court submitted one special issue as to whether the room occupied by appellee was a part of a hotel or inn. Appellants complain on this appeal of the submission of this issue by the trial court. The court also submitted five issues requested by appellants and two issues requested by the appellee. Upon the jury's findings, the court granted a judgment permitting appellants the recovery of $45, which item was offset against the sum of $150 exemplary damage awarded appellee by the jury. Appellee also recovered judgment for his personal property and Pekingese.
Judgment was rendered two days prior to the end of the term of court. A motion for new trial was filed during the term and an amended motion filed after term time and overruled. Appellants assign six points of error and under a seventh point allege there was no error in their filing an amended motion for a new trial after the term of court had ended. Appellants' points will be considered in the order of their filing, after point 7 is disposed of. Appellee's counterpoints are disposed of in the rulings on appellants' points.
Appellants' Point 7 is an answer to the appellee's contention that an amended motion for new trial could not be filed after term time and therefore no jurisdiction was acquired by the appellate court.
Rule 324, Texas Rules of Civil Procedure, requires the filing of a motion for a new trial with certain exceptions. One of the exceptions is, 'unless there is not full five days' time from the rendition of the judgment to the adjournment of the court for the term.' Under this provision, it has been held that no motion for a new trial is required in order to appeal. Woodmen of the World Life Ins. Soc. v. Brown et al., Tex.Civ.App., 164 S.W.2d 190. Where motion for a new trial is not required, as where judgment is rendered within five days before adjournment of the court term, the points in appellants' brief are sufficient to point out the errors on which the appeal is predicated. DeBusk et al. v. Guffee et al., Tex.Civ.App., 171 S.W.2d 194.
As no motion for a new trial was required under the rules, the appeal would not be prejudiced by the filing of such a motion during term time and the amendment of the same after the term had closed.
Appellants' Points 1 and 2 will be considered together as both relate to the alleged error of the trial court in submitting appellee's requested Issues Nos. 1 and 2 pertaining to exemplary damage and as to rendering judgment against appellants in favor of appellee for the sum of $150 exemplary damages. Appellee recovered judgment for his specific items of personal property, but it is observed that there was no alternative provision in the judgment authorizing the recovery of the value of each item of property as not delivered under the judgment. There is no evidence in the record as to either the cash market value or as to the intrinsic value of the respective items of property taken from appellee.
The above points involve the sole question of whether exemplary damages can be recovered in the absence of a recovery of actual damage. The Supreme Court of Texas holds Fort Worth Elevators Co. v. Russell et al., 123 Tex. 128, 70 S.W.2d 397, 409.
The authorities cited by appellee do not permit the recovery of exemplary damages predicated solely on the recovery of property wrongfully converted. Smith...
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