Colorado & S. Ry. Co. v. Hamm

• Decision Date: 29 June 1907
• Citation: 103 S.W. 1125
• Parties: COLORADO & S. RY. CO. v. HAMM.
• Court: Texas Court of Appeals

103 S.W. 1125

COLORADO & S. RY. CO. v. HAMM.

Court of Civil Appeals of Texas.

June 29, 1907.

Appeal from District Court, Clay County; A. H. Carrigan, Judge.

Action by L. R. Hamm against the Ft. Worth & Denver City Railway Company and the Colorado & Southern Railway Company. Judgment for plaintiff, and defendant Colorado & Southern Railway Company appeals. Reversed and rendered.

Spoonts, Thompson & Barwise and W. T. Allen, for appellant. J. H. Harper, for appellee.

CONNER, C. J.

As assignee of Highfill & Houston, appellee instituted this suit against the Ft. Worth & Denver City Railway Company and the appellant, the Colorado & Southern Railway Company, to recover damages to three several shipments of cattle made in June, 1904, from Bellevue, Tex., to Denver, Colo. By his first amended original petition, filed March 20, 1905, appellee alleged that the Ft. Worth & Denver City Railway Company undertook to transport said cattle from Bellevue to Texline in safety and with reasonable dispatch, and there deliver the same to its connecting carrier, the appellant herein, for further transportation to said Denver with like safety and reasonable dispatch. It was further alleged that it was the duty of appellant to promptly and without unreasonable delay receive and accept said cattle in the order in which they arrived at Texline, and to transport them over its said line of railroad to Denver, in the state of Colorado, there to be delivered to the consignees for sale upon the market. Negligence, rough handling, and delay in transportation from Bellevue to Denver were charged against each of the defendants, thereby causing the damages sought to be recovered. The cause was first tried on the 30th day of May, 1905, and resulted in a verdict and judgment in favor of the plaintiff against the Ft. Worth & Denver City Railway Company for $625, and a verdict and judgment in favor of the appellant. From this judgment the Ft. Worth & Denver City Railway Company alone appealed, and this court reversed it and remanded the cause for a new trial because of errors pointed out in the opinion. See Ft. W. & D. C. Ry. Co. v. Hamm, 93 S. W. 215, 15 Tex. Ct. Rep. 202. The cause again coming on for trial upon the amended petition already mentioned, the appellant pleaded in bar the former verdict and judgment rendered in its favor on the 30th day of May, 1905, and, after introducing its testimony in support of this plea, requested the court to instruct the jury to return a verdict in its favor, which instruction the court refused, and the trial before a jury resulted in a verdict against appellant for $560.73, and against the Ft. Worth & Denver City Railway Company for $242. Judgment on November 15, 1906, was entered in accordance with the verdict, and appellant prosecutes this appeal.

The only question presented by appellant is whether its plea of res adjudicata should have been sustained. As preliminary to a discussion of this question, however, it is necessary to dispose of a motion filed by appellee to strike from the record the evidence relied upon by appellant in support of said plea. We have before us a stenographic report of evidence duly certified and approved, and also a transcript by the clerk of the court which he certifies contains a true copy of all proceedings save the stenographer's report accompanying the transcript. It is in this clerk's transcript that the evidence of the former proceedings appear. We therein find copy of the judgment of the district court of May 30, 1905, in appellant's favor, as alleged in appellant's plea; also copy of the appeal bond filed by the Ft. Worth & Denver City Railway Company on its said appeal, showing that appellee alone was made payee; also copy of the mandate and opinion of this court in general terms reversing that judgment and remanding the cause for a new trial; also copy of written direction of the trial judge, filed December 19, 1905, for the clerk, upon appeal, to copy the several evidences mentioned in his transcript. In substance appellee insists in his motion that the judge was not authorized to give the direction mentioned, because made after term time, and hence when not acting as a court, and that the incorporation of the documentary evidence in the clerk's transcript was unauthorized, because not embraced in the stenographer's report; the stenographer's act of 1905 (Acts 1905, p. 219, c. 112) being relied upon as supporting these contentions. The act referred to is entitled "An act to provide for the appointment of a competent stenographer to report cases, and to make the report of such stenographer, when filed and approved, the statement of facts of the oral evidence in the case, and to provide for the compensation of such stenographer." Sections 1 and 2 provide for the appointment of official stenographers, and sections 3 and 5 (all that we deem necessary to quote) are as follows:

"Sec. 3. It shall be the duty of the official stenographer to attend all sessions of the court, to take full stenographic notes of the oral evidence offered in every case tried in said court, together with all objections to the admissibility of testimony, the rulings of the court thereon, and all exceptions taken to such rulings; to preserve all official notes taken in said court for future use or reference, and to furnish either party to the suit a transcript of all of said evidence or other proceedings, upon the payment to him of the compensation hereinafter provided."

"Sec. 5. In case an appeal is taken from the judgment rendered in said case, said original stenographer's transcript shall be sent up as the record of said cause as the report of the testimony therein, the cost of such transcript paid by either party to be taxed against the party losing on such...