Jackson v. Walls

• Decision Date: 10 May 1916
• Docket Number: (No. 991.)
• Citation: 187 S.W. 676
• Parties: JACKSON v. WALLS.
• Court: Texas Court of Appeals

Page 676

187 S.W. 676

JACKSON v. WALLS.

(No. 991.)

Court of Civil Appeals of Texas. Amarillo.

May 10, 1916.

Rehearing Denied June 28, 1916.

Appeal from District Court, Dallas County; E. B. Muse, Judge.

Action by James D. Jackson against J. S. Walls. Judgment for defendant, and plaintiff appeals. Affirmed.

Senter & Synnott, of Dallas, for appellant. George, Hancock & Hardwicke, of Dallas, for appellee.

HENDRICKS, J.

Mrs. Augusta Hamm, wife of Frank Hamm, owned a farm in Dallas county, and by written lease executed by her husband, Frank Hamm, rented the same to J. S. Walls, for the year 1912, to be cultivated on shares by said tenant. Walls also occupied the place for the year 1913, without any further written lease, but evidently upon the same terms and stipulations in the previous written lease executed by Frank Hamm, as agent for his wife. In December, 1913, Mrs. Hamm conveyed the property to the appellant, Jackson, her husband negotiating the sale and representing to Jackson that the farm was not rented for the year 1914, and that Jackson could have possession of same on January 1, 1914. After Jackson purchased the land, through his agent, he demanded possession of Walls, the tenant, the latter refusing to yield his possession of the property, claiming that he had it rented for the year 1914. This suit was brought in formal trespass to try title, and upon a sequestration affidavit and bond, Walls was dispossessed under a writ of sequestration about February 5, 1914. He did not replevy, and the verdict of the jury and the judgment of the court in his favor for damages, both actual and exemplary, constitute the basis of litigation in this appeal.

Walls alleged that in the fall of 1913 he was in possession of the premises under lease from Hamm, and in October of that year entered into another contract with him as the agent of Mrs. Augusta Hamm, by the terms of which he was to cultivate and remain in possession of the land for the year 1914, and to plant 30 acres of cotton and 20 acres of corn, for one-fourth of the cotton and one-third of the corn, as rent, and was to have half the fruit in the orchard on the premises for that year; that plaintiff, Jackson, bought the land from Hamm, knowing of his (Walls') possession and rights for the succeeding year. The answers of the jury found the following facts, quoting from appellant's brief:

"That Walls did have a contract to occupy the land for 1914; that plaintiff, when he sued out the writ, knew of this contract; that Walls was to pay one-fourth of the cotton and one-third of the corn as rent; that if Walls had occupied the place for 1914, he would have made $750 worth of cotton and corn, net; that he and his son did make for said year $370; that when plaintiff sued out the writ of sequestration, he knew, or should have known, that Walls was entitled to possession; that defendant was entitled to $175 as exemplary damages."

A motion was made by the plaintiff for judgment, which was overruled. The trial court, however, required Walls to remit $225 of the actual damages, and thereupon rendered judgment for the plaintiff for the land, and for the defendant on his cross-action for $125 actual damages, and $175 exemplary damages.

There are several assignments of error, reproduced from the motion for a new trial, which challenge the trial court's action on account of overruling different paragraphs of its amended motion for judgment on the special issues, and in not rendering judgment for the plaintiff and against defendant's cross-action. Without specifically identifying and enumerating the particular assignments, we overrule the same. It is true, of course, that before the submission of a cause to the jury on special issues, a trial court may, if the evidence is deemed insufficient to sustain a cause of action, or defense, peremptorily instruct a jury, but it has long been the settled rule in this state that when issues of fact, or supposed facts, have been submitted to the jury, and the latter have found thereupon the trial court is required to conform his judgment to the jury's findings. The court then has the right to set aside the judgment because it is contrary to the evidence, or for the want of evidence to support it, but it has no authority, under our procedure, to disregard the verdict of the jury and enter a judgment contrary thereto. Armstrong v. Hix, 175 S. W. 430, the last case by the Supreme Court on this subject; McLemore v. Bickerstaff, 179 S. W. 537, wherein the authorities on this subject are cited. Hence, when the appellant bases his assignments upon a motion, or upon paragraphs in his motion, on the theory that the trial court erred in failing to render judgment in his favor, after the verdict has been found, the assignments are inappropriate to raise the question, however correct in the abstract the propositions may be. The trial court could not have done otherwise under the decisions cited than to have rendered the judgment that he did upon the verdict.

It is assigned that the verdict and the judgment are contrary to the evidence and against the great preponderance thereof, and without any sufficient evidence to support them, for the reason that there is no proof that Frank Hamm, the husband, was the agent of Mrs. Augusta Hamm, the owner of the property, and that the affirmative evidence shows that he was not such agent, and without authority from her to make the contract to the tenant, Walls, for the year 1914. In the case of Dority v. Dority, 96 Tex. 215, 71 S. W. 953, 60 L. R. A. 941, it was decided by the Supreme Court that "the sole management" of the wife's property during marriage, given to the husband by article 2967,...