Letot v. Peacock

• Decision Date: 16 June 1906
• Citation: 94 S.W. 1121
• Parties: LETOT v. PEACOCK et al.
• Court: Texas Court of Appeals

94 S.W. 1121

LETOT v. PEACOCK et al.

Court of Civil Appeals of Texas.

June 16, 1906.

Appeal from District Court, Dallas County; T. F. Nash, Judge.

Action by M. C. Peacock and others against C. Letot. From a judgment in favor of plaintiffs, defendant appeals. Reversed and remanded.

Finley, Knight & Harris, for appellant. Parks & Fagan and Clark & Clint, for appellees.

RAINEY, C. J.

The appellees brought this suit against the father, the appellant, and other children to recover their interest in a community estate of appellant and deceased wife, mother of plaintiffs and the other children, and sought a partition of same. The appellant pleaded the exclusive use of 200 acres of the land as a homestead; that part of his separate estate had been expended as part of the purchase price for one tract of the land; that advancements had been made out of the community money to Lizzie Letot and Mattie C. Peacock, plaintiffs; that he had purchased the interest of David Letot and Mary Andrews, one of the defendants, in the community estate; and that Eugenia Williamson and Oliver Letot were not seeking any relief against him. Special issues were submitted to the jury and upon the return of their answers the court rendered judgment, from which the defendant appeals.

The jury found specifically that $1,500 of C. Letot's separate property went into the purchase of the Shelley survey. In rendering the judgment the court ignored this finding, and on this action of the court the first and second assignments of error are predicated. Appellees contend that these assignments should not be considered by this court, because the matter was not made the basis for a new trial in the court below. The motion for a new trial in the different counts does present to the court that the judgment does not conform to the verdict of the jury, but does not specifically state in what particular the judgment does not conform to the verdict. The rendition of judgment was an act of the court and had to conform to the verdict, and a failure to conform thereto was not a matter that had to be called to the court's attention by a motion for a new trial to enable the party to present it here for revision. "Having once acted, it is not to be presumed that the judge will change his ruling." Clark v. Pearce, 80 Tex. 147, 15 S. W. 787; Tel. Co. v. Mitchell, 89 Tex. 441, 35 S. W. 4; Marsalis v. Crawford, 8 Tex. Civ. App. 485, 28 S. W. 371. As to the merits of the assignments we think they are well taken. There is no principle better settled in our jurisprudence than that the verdict forms the basis for the judgment, and the judgment must conform thereto. In this case the judgment does not conform to the verdict, and whether the verdict is right or wrong makes no difference. If the verdict should be wrong, it is the basis for the court's action, and he cannot render any judgment not in conformity therewith, but should grant a new trial. In answer to interrogations...