Jeter v. Gouhenour

• Decision Date: 14 January 1905
• Citation: 84 S.W. 1091
• Parties: JETER v. GOUHENOUR.<SMALL><SUP>*</SUP></SMALL>
• Court: Texas Court of Appeals

84 S.W. 1091

JETER v. GOUHENOUR.^*

Court of Civil Appeals of Texas.

January 14, 1905.

Error from District Court, Hartley County; Ira Webster, Judge.

Action by R. P. Gouhenour against J. M. Jeter to recover the office of county judge of Moore county, and damages for the loss of fees of office collected by defendant. Judgment for the office, and plaintiff brings error. Affirmed in so far as it denied the claim for fees, and otherwise dismissed.

Veale, Hendricks & Bailey and Browning, Madden & Trulove, for plaintiff in error. Reeder & Cooper, for defendant in error.

STEPHENS, J.

Defendant in error brought this suit to recover from plaintiff in error the office of county judge of Moore county, and also damages for the loss of the fees of office collected and appropriated by plaintiff in error. Both issues were submitted to the jury, and disposed of as follows: "We, the jury, find that no vacancy existed in the office of county judge of Moore county, Texas, and therefore find for plaintiff with fees or salary." Judgment was entered on this verdict for the office and costs of suit, but without making any mention of the clause "with fees or salary." Since this judgment was rendered, the tenure of office in dispute has ceased to exist, and for that reason the judgment cannot be executed.

The first question to claim our attention is one of jurisdiction; that is, whether the judgment appealed from disposed of all the issues, so as to render it final and appealable. It has more than once been held that, if the verdict and judgment fail to dispose of an issue made by the pleadings and evidence, the appeal from such a judgment must be dismissed for want of appellate jurisdiction. Burch v. Burch (Tex. Civ. App.) 28 S. W. 828; Bank v. Vander Stucken (Tex. Civ. App.) 37 S. W. 170; Otto v. Halff (Tex. Civ. App.) 32 S. W. 1052; and cases cited in these opinions.

The question, then, is, did the verdict and judgment dispose of the claim made by plaintiff below for the amount of fees collected by defendant? In submitting this issue, the court gave the following charge: "If you shall find for the plaintiff under the foregoing instructions, you should also find for him the fees or salary, if any, which the evidence may show that the defendant has received since he has been acting county judge of said county." The evidence tended to show that defendant had collected fees during the time he held the office, but failed to show how much he had collected, which doubtless accounts for the form of the verdict, which seems to have been construed by the court as finding that plaintiff had failed to show...