Conner v. Parker

• Decision Date: 15 June 1944
• Docket Number: No. 4238.,4238.
• Citation: 181 S.W.2d 873
• Parties: CONNER et al. v. PARKER et al.
• Court: Texas Court of Appeals

181 S.W.2d 873

CONNER et al. v. PARKER et al.

No. 4238.

Court of Civil Appeals of Texas. Beaumont.

June 15, 1944.

Appeal from San Augustine County Court; R. T. Norvell, Judge.

Action by Mrs. Judith Parker, doing business as City Grocery Company, joined by her husband, Sam Parker, and another, against J. W. Conner and W. H. Addison to recover for four head of cattle impounded by defendant Addison wherein defendant Addison filed a cross-action. From a judgment for plaintiffs, defendants appeal.

Reversed and remanded.

Joe J. Fisher, of Jasper, and McAlister & Tucker, of Nacogdoches, for appellants.

Drew S. Davis, of San Augustine, for appellees.

COE, Chief Justice.

Mrs. Judith Parker, doing business as City Grocery Company, joined by her husband, Sam Parker, and F. K. Parker, hereinafter called appellees, brought suit in the County Court of San Augustine County against J. W. Conner and W. H. Addison, hereinafter called appellants, seeking a judgment for four head of cattle, of the alleged value of $400, which had been impounded by W. H. Addison. The defendants answered by general demurrer and general denial, and the defendant W. H. Addison filed cross-action against appellees, seeking damages for destruction of his cotton, corn and peas by plaintiffs' cattle. From a judgment of the court, without the intervention of a jury, in favor of plaintiffs for the four head of cattle impounded by the defendant Addison, and against the defendant Addison on his cross-action for damages, and against the defendants, J. W. Conner and W. H. Addison, as principals, and R. L. Baggett and T. Hanzel, as sureties, on replevy bond executed in said cause for the valuation of $125 per head for each head of cattle not delivered back to the plaintiffs, this appeal has been prosecuted.

Appellees suggest in their brief that this court has no jurisdiction of this cause for the reason that no motion for a new trial was made, and no notice of appeal was given during the term of the court at which this case was tried. Upon an investigation of the record, we find from the caption that this case was tried at a term of the county court beginning on the 22nd day of November, A. D. 1943, and ending on the ______ day of February, A. D. 1944. Judgment was entered in this cause on the 9th day of December, 1943, and motion for new trial was filed on the 14th day of December, 1943, and was overruled on the 18th day of December, 1943, at which time notice of appeal was given, as reflected by the order overruling the motion for a new trial. Therefore, it affirmatively appears from the record that notice of appeal was given during the term at which this case was tried, and therefore this court has jurisdiction of the appeal.

Appellants present one proposition for a reversal of this cause, such proposition being in substance as follows: That it was error for the trial court, after both sides had presented all of their evidence and while the court had the matter under advisement, to go upon the premises and view a fence, the sufficiency of which was a very material issue and about which the evidence was sharply conflicting.

It appears from the evidence that appellant, W. H. Addison, was cultivating certain land which was enclosed, together with lands cultivated by another, by one fence, and that appellees' cattle went upon his cultivated land during the period of time from August 19, 1943, to August 29, 1943, causing damage to his growing crops of cotton, corn and peas. It was admitted by both sides that there was no existing stock law for...