Hill v. Neuman
| Decision Date | 25 January 1887 |
| Citation | 3 S.W. 271 |
| Parties | HILL <I>v.</I> NEUMAN. |
| Court | Texas Supreme Court |
Action to recover personalty. Judgment for plaintiff, Neuman. Defendant appeals.
Bassett, Muse & Muse, for appellant. Garrett, Searcy & Bryan, for appellee.
This action was brought by the appellee to recover an undivided half interest in a house, mill, gin, and other machinery situated on a lot belonging to a third person, and to recover damages for its use. It is admitted that the property was placed on the lot under such circumstances as to make it personal property. The petition did not allege who was the owner of the other interest. No plea in abatement, or exception raising the question of want of proper parties, was filed, but it is now urged that the judgment rendered should be reversed for the non-joinder of the co-owner. If such objection had been urged at the proper time, and in the proper manner, it should have been sustained; but it cannot be raised in this court for the first time, nor can such a question be considered under a general demurrer. May v. Slade, 24 Tex. 209. The petition stated a good cause of action in favor of the plaintiff against the defendant, and, if the latter was content to waive the non-joinder of some other person who ought to have been joined, the judgment cannot now be reversed. The cause was tried without a jury, and the judge, at request, filed conclusions of fact and law, to which exception was taken. The defendant also moved the court to correct the conclusions of fact, suggesting in the motion what the conclusions should be, and this motion was overruled. This is assigned as error.
If the conclusions of fact were not supported by the evidence, this matter could be corrected here, on a proper assignment of errors, if a full statement of facts be brought up, or the court below would doubtless re-examine its finding on motion for new trial based on the insufficiency of the evidence to support the findings. Erroneous findings may be corrected in either of these methods. It is the duty of a judge trying a cause to make findings upon any material issue in a case when requested to do so, as the findings become the basis of the judgment; and a failure to do so would be ground for reversal, unless it clearly appear that the evidence would have required, on the issue not passed upon, a finding adverse to the party complaining that no finding was made. As this case is presented, and in view of other matters presented by the record, we deem it unnecessary to inquire whether the court should have made findings other than those made.
The appellee purchased the property in controversy under an execution against the appellant. The execution, which appears to have been an original, issued on August 8, 1884, on a judgment rendered in favor of Shepard & Garrett on ...
To continue reading
Request your trial
-
Hicks v. Southwestern Settlement & Develop. Corp.
...injury to, loss or conversion of personal property or damages for use thereof, Waggoner v. Snody, 98 Tex. 512, 85 S.W. 1134; Hill v. Neuman, 67 Tex. 265, 3 S.W. 271; Leonard v. Worsham, 18 Tex.Civ.App. 410, 45 S.W. 336. The same rule has been stated and applied in actions by part owners of ......
-
American Automobile Ins. Co. v. Cone
...and not being fundamental, must here be deemed to have been waived by the insurance company and cannot now be considered. Hill v. Newman, 67 Tex. 265, 3 S. W. 271; Kemendo v. Fruit Dispatch Co., 61 Tex. Civ. App. 631, 131 S. W. 73. As said above, the general demurrer to the cross-action doe......
-
Commerce Farm Credit Co. v. Ramp
...the hands of the sheriff. The levy was properly restrained because the execution was not properly issued and was voidable. Hill v. Newman, 67 Tex. 265, 3 S.W. 271; Spiller v. Hollinger, Tex.Civ.App., 148 S.W. 338. The injunction did not restrain the plaintiff in the judgment from filing an ......
-
City of Dallas v. Early
...in limine. As the question was presented, it was not in due order of pleading. Revised Statutes, art. 2012 (1909) (1268); Hill v. Newman, 3 S. W. 271, 67 Tex. 265; Kemendo v. Fruit Dispatch Co., 131 S. W. 73, 76, 61 Tex. Civ. App. However, if the question of misjoinder had been properly pre......