Johnson v. Hoover & Lyons
| Citation | 165 S.W. 900 |
| Parties | JOHNSON v. HOOVER & LYONS. |
| Decision Date | 21 March 1914 |
| Court | Texas Court of Appeals |
Appeal from District Court, Hemphill County; F. P. Greever, Judge.
Action by Hoover & Lyons against J. F. Johnson. Judgment for plaintiffs, and defendant appeals. Affirmed.
N. P. Willis and Frank Willis, both of Canadian, for appellant. Hoover & Hoover, of Canadian, for appellees.
This controversy arose over the sale and delivery of wheat by the appellees to the appellant, and the payment by the appellant with a check of the Johnson Mercantile Company, for said wheat, with a recitation upon said check, "Balance on Lyon wheat." Appellees claim to have sold the wheat to appellant individually. Appellant alleges that he purchased the wheat as agent for the Johnson Mercantile Company, of which appellees had notice, and that the execution and delivery of the check with the indorsement upon the same was a full settlement as a consideration for the wheat.
The appellant's brief embodies assignments of error leveled at the action of the trial court, by either complaining of some phase of the general charge of the court, or of the refusal of the trial court in failing to give some special instruction requested by him, except the last assignment, which is a complaint that the verdict and judgment is contrary to the law and the evidence.
As to the objections to the general charge and the attempted complaint of the action of the court in refusing the special charges, the condition of the record is such that, under the Acts of the Thirty-Third Legislature with reference to the trial of causes and the submission of general and specially requested instructions to the jury, he is unable to complain on account of the inadequacy or total lack of exceptions. General Laws of Texas, Session Acts, p. 113.
We find objections to the charge in the record, purported to have been made by the recitations in the pleading before the charge of the court was read to the jury. However, there is no preservation of exceptions to the action of the court in this respect, nor any approved record showing when the objections were made. The statute imperatively prescribed that the objections shall, in every instance, be presented to the court before the charge is read to the jury, and all objections not so made and presented shall be considered as waived, necessarily requiring the incorporation of the fact of the presentation to the court of the objections before the charge was read to the jury into the record; and exceptions should be reserved thereto not exhibited in this record. The recitation in the pleading is insufficient—the court must act and exceptions be properly preserved. As to the...
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