Killman v. Young

• Decision Date: 21 November 1914
• Docket Number: (No. 8038.)
• Citation: 171 S.W. 1065
• Parties: KILLMAN v. YOUNG.
• Court: Texas Court of Appeals

171 S.W. 1065

KILLMAN v. YOUNG.

(No. 8038.)

Court of Civil Appeals of Texas. Ft. Worth.

November 21, 1914.

Rehearing Denied December 19, 1914.

Appeal from Johnson County Court; J. B. Haynes, Judge.

Action by Mrs. Nora Killman against L. B. Young. From a judgment for defendant, plaintiff appeals. Reversed and remanded for new trial.

Phillips & Rice, of Cleburne, for appellant. F. E. Johnson and Ramsey & Odell, all of Cleburne, for appellee.

CONNER, C. J.

Mrs. Nora Killman instituted this suit for the recovery of three diamond rings alleged to be her property and to be in the defendant Young's possession. Appellee, Young, answered to the effect that the rings had been deposited with him with the knowledge and consent of the plaintiff by one Creale to secure a promissory note of the said Creale's for $110, which had been given for a loan of money to him, and which was unpaid. He further answered that, after the pledge stated, the plaintiff had been fully advised of the circumstances under which the defendant obtained possession of the rings, and that she ratified and confirmed the delivery of the same to him as security for the loan mentioned, and alleged that, in consideration of the surrender to her of the note executed by Creale, she had assumed the Creale debt and executed a bill of sale to the rings to secure the debt so assumed by her. A trial before a jury resulted in a verdict and judgment in favor of the defendant, and the plaintiff has appealed.

Appellant's first assignment must be disregarded as multifarious. It is that:

"The court erred in overruling and not sustaining plaintiff's objections and exceptions to his general charge and in not charging the jury the law of the case as pointed out in said exceptions and objections, which are as follows, to wit:"

Then follow the objections made consisting of the first, second, third, fourth, and fifth paragraphs, the fifth paragraph being further divided into the first, second, third, fourth, fifth, and sixth subdivisions; the paragraphs as a whole referring to different clauses of the court's charge and embodying several separate and distinct questions of law and of fact. The only proposition submitted under the assignment is that:

"The foregoing assignment of error sufficiently disclosing appellant's objections, it is here adopted and submitted as a proposition under the first assignment of error."

Such an assignment and proposition cannot be said to be of that specific character entitling them to consideration. The assignment is a copy of the first paragraph of appellant's motion for new trial, but the fact that the motion for new trial by our amended law now constitutes the assignments of error does not render less necessary an observance of the statutes and rules which give the requisites of assignments of error. Appellant's first assignment is accordingly overruled.

Appellant's second assignment relates to a charge which authorized a verdict for the plaintiff and need not be considered.

The third assignment, however, we think well taken. It is that the court erred in the second paragraph of his charge, which is as follows:

"If you should believe, however, that said F. E. Creale for the purpose of obtaining a loan upon the same, or that the...