Rackley v. Fowlkes

• Decision Date: 28 May 1896
• Citation: 36 S.W. 77
• Parties: RACKLEY v. FOWLKES.
• Court: Texas Supreme Court

36 S.W. 77

RACKLEY v. FOWLKES.

Supreme Court of Texas.

May 28, 1896.

Error to court of civil appeals of Third supreme judicial district.

Action by J. J. Rackley against J. S. Fowlkes. There was a judgment of the court of civil appeals (36 S. W. 75) affirming a judgment for plaintiff, and defendant brings error. Reversed.

Ward & James, for plaintiff in error. D. D. Wallace and Cochran & Hill for defendant in error.

DENMAN, J.

J. S. Fowlkes sued J. J. Rackley in the district court of Tom Green county for rent for 75 acres of land for the years 1889, 1890, 1891, and 1892, which he alleged said Rackley wrongfully dispossessed him of on the 1st of January, 1889, and held possession thereof during said series of years, converting to his own use the rents, fruits, and revenues thereof. Rackley, among other things, pleaded: (1) That on 29th day of March, 1889, Fowlkes filed in the district court of Tom Green county a suit against him (Rackley) and others, in trespass to try title, to recover said tract of land and rents thereof for the year 1889. (2) That in said suit Rackley and other defendants joined issue with Fowlkes upon his said claim for rent by filing an answer denying all and singular the allegations of plaintiff's petition. (3) That on the 28th day of April, 1890, said entire cause, together with said issue as to rents, being submitted to the court, it rendered judgment for plaintiff, Fowlkes, against all the defendants, including said Rackley, for the title and possession of said land, but failed and refused to give plaintiff, Fowlkes, any judgment for rents. Wherefore he claimed that Fowlkes' right, if any he ever had, to recover against him (Rackley) rents for the year 1889 was adjudicated and barred by said judgment, which he pleaded as an estoppel. On the trial of this cause plaintiff, Fowlkes, introduced in evidence the petition, answer, and judgment in the cause formerly brought by him against defendant, Rackley, and others, referred to in said plea of res adjudicata, which record shows that the pleadings put in issue plaintiff's right to recover rents for said land for the year 1889, as stated in said plea of res adjudicata, and that on the date stated in said plea the court in said cause rendered a judgment "that plaintiff, J. S. Fowlkes, do have and recover of and from defendants J. A. Hollingsworth, John R. Nasworthy, and J. J. Rackley the title and possession to the following tracts or parcels of land, to wit [here giving field notes of land for which rent is sought to be recovered in the suit now before us], and all costs of this suit, for which he may have a writ of possession and execution." After introducing said record from said original cause, plaintiff introduced as a witness D. D. Wallace, his attorney therein, who was allowed to testify, in reference thereto, without objection, that "no evidence was introduced concerning rents of the land sued for on that trial. The question of rents was not put in issue. After the evidence was over and after the argument was closed, I offered to prove the value of the rent. The testimony was objected to by H. C. Fisher, counsel for the defense, on the ground that it came too late, and the objection was sustained." This was all the evidence with reference to said plea of res adjudicata. The trial court charged the jury as follows: "You will find in plaintiff's favor for the value of the rent for the years sued for, provided you further find that J. A. Hollingsworth, or said Hollingsworth and defendant, had possession of said land during the year 1889, and up to May 12, 1890; and in any event you will find in plaintiff's favor for the value of the rent from May 12, 1890, to the end of the year 1892,"—and also directed them to estimate rent for each year separately. Whereupon the jury returned a verdict "for the rent for the year 1889, $539.58," and then gave the amount of rent separately for the years 1890, 1891, and 1892, upon which verdict the court rendered judgment in favor of plaintiff, Fowlkes, against defendant, Rackley, for the sum of $1,534.20, being the total amount of the rents specified in the verdict of the jury for the years 1889, 1890, 1891, and 1892. From this judgment Rackley appealed, giving supersedeas bond, to the court of civil appeals, assigning as error that the court below erred (1) in rendering judgment against him for the rents for the year 1889, and (2) in submitting the question of rents for the year 1889 to the jury, which said assignments the court of civil appeals held not well taken, and affirmed the judgment of the court below, and rendered judgment that "the appellee, J. S. Fowlkes, do have and recover of and from the appellant, J. J. Rackley, principal, and his sureties, H. B. Gerhart and W. M. Killgore, the amount adjudged by the court below, and all costs in this behalf expended." Plaintiff in error, Rackley, assigns as...