Crowley v. Finch

• Court: Texas Court of Appeals
• Writing for the Court: Rasbury
• Citation: Crowley v. Finch, 153 S.W. 648 (Tex. App. 1913)
• Decision Date: 14 December 1913
• Parties: CROWLEY v. FINCH.

153 S.W. 648

CROWLEY v. FINCH.

Court of Civil Appeals of Texas. Dallas.

December 14, 1913.

Rehearing Denied February 15, 1913.

Error to Dallas County Court; E. B. Muse, Judge.

Action by H. E. Crowley against T. E. Lester, in which J. B. Finch filed an affidavit and bond, and claimed possession and ownership of the property in controversy. There was a judgment for claimant, and plaintiff brings error. Affirmed.

Wilson, Williamson & Simmons, of Dallas, for plaintiff in error. Lively, Nelms & Adams, of Dallas, for defendant in error.

RASBURY, J.

This suit was a contest under the statutory remedy of the trial of the right of property to determine the ownership of an automobile described as a "Marmon Roadster." Plaintiff in error sequestrated the car in a proceeding filed against one T. E. Lester. Defendant in error filed affidavit and bond under the statute and claimed possession and ownership of the car. Tender of issues were filed as provided by statute. A jury was demanded and regularly impaneled. At the conclusion of the testimony the court trying the case instructed the jury to return a verdict for defendant in error. The jury returned the verdict directed by the court, and plaintiff in error brings the case here upon assigned errors.

For the reason that the action of the trial court in peremptorily directing a verdict for defendant in error was not properly challenged in the court below, it becomes our duty to affirm this case, since we have no option in the matter. The court below, as a matter of course, was only authorized to instruct a verdict on the theory that there was no testimony to support the claim of plaintiff in error that ownership of the car was in him. While the trial judge goes to some length in reciting in his charge his reasons for directing the jury to return a verdict for defendant in error, yet in the last analysis the charge is essentially a peremptory one, whether his reasons for so doing were sound or not. At no place in the brief or the record is there to be found an assignment by which it is asserted and shown by proper excerpts from the testimony that sufficient facts were adduced by the plaintiff in error to take his case to the jury and that as a result the court erred in instructing a verdict.

It is true that under his fourth assignment plaintiff in error argues that the court, by its peremptory charge, invaded the province of the jury; but the assignment does not remotely raise the point that there was evidence sufficient to take the case to the jury. Under said assignment plaintiff in error complains of the court for refusing to give to the jury certain special charges, and for giving in lieu of the requested special charges the peremptory charge to return a verdict for defendant in error. The assignment literally is that the special charges should have been given rather than the peremptory charge. This may have been true, but before we can determine that fact an assignment of error, as we have said, should have been prepared and filed showing that there was testimony in the record supporting plaintiff in error's claim that the car was his.

We are not required to go to the record and ascertain that the evidence was conflicting and consider same in the...