Taylor v. Butler

• Decision Date: 25 April 1914
• Docket Number: (No. 7928.)
• Citation: Taylor v. Butler, 168 S.W. 1004 (Tex. App. 1914)
• Parties: TAYLOR v. BUTLER.
• Court: Texas Court of Appeals

168 S.W. 1004

TAYLOR v. BUTLER.

(No. 7928.)

Court of Civil Appeals of Texas. Ft. Worth.

April 25, 1914.

On Motion for Rehearing June 7, 1914.

Appeal from Eastland County Court; E. A. Hill, Judge.

Claim by L. D. Taylor to attached property against Z. Z. Butler. Judgment for defendant, and claimant appeals. Affirmed.

J. R. Stubblefield, of Eastland, for appellant. Earl Conner, of Eastland, for appellee.

CONNER, C. J.

L. D. Taylor appeals from an adverse judgment in a contest instituted by him by filing a claimant's affidavit and bond for several bales of cotton that the appellee, Z. Z. Butler, had attached as the property of Will Taylor. The Taylor family included Mrs. Ellie Taylor, the mother, and her sons, Will Taylor, Jesse Taylor, and L. D. Taylor, the appellant herein.

He first complains that the court erred in excluding the evidence of Mrs. Ellie Taylor to the effect that the claimant, Will Taylor and Jesse Taylor, came into the house on one occasion and stated in her presence, and in the presence of each other, that they had agreed among themselves that L. D. Taylor should have all of the crop to be grown on the W. G. Nabors place, upon which the cotton in controversy was grown. In order to require a review of the question so presented it was, of course, necessary that appellant take a proper bill of exception to the action of the court. Bill of exception No. 1, to which the assignment refers as its basis, does not support the assignment. The bill states that the exception was to the remark of the court in the jury's presence to the effect that he could not conceive how the witness Mrs. Ellie Taylor could live in the house with her boys all the year and not know what the agreement was except by what the boys told her.

Moreover, the evidence offered is in the nature of a mere recitation by the Taylor boys, including one of the parties to the suit, of the terms of an agreement theretofore made. It does not appear that appellee was present, and as to him the evidence constituted but the unsworn declarations of interested parties in their own favor. It may also perhaps be appropriately stated as excluding any possibility of prejudicial error in the court's ruling that each of the Taylor boys, Will, L. D., and Jesse, testified to the effect that early in the rental year it was agreed that L. D. Taylor should have the cotton to be grown on the Nabors place, and Mrs. Ellie Taylor, the mother, herself testified, among other things, that "Lonnie (L. D.) was to have the cotton which was grown on the Nabors place." We are of the opinion that the first assignment must be overruled.

We think the court was clearly right in excluding the statement of the witness L. D. Taylor, to the effect "that he was the owner of the three bales of cotton which was levied upon to pay the debt" of Will Taylor. The witness, as also other witnesses, was permitted to state all of the circumstances relating to the rental of the Nabors place, the cultivation and gathering of the crop, etc., from all of which it was the function of the jury to determine whether Will or L. D. Taylor was the owner. The offered statement is evidently a mere conclusion, and a conclusion, too, which in this case was particularly for the jury. The court, therefore, properly excluded it.

The remarks of the court complained of in the third assignment appear to have been harmless, as explained by bill of exception; the jury being instructed that the remarks were intended for counsel only, and that the remarks should be disregarded by them.

Appellant's eighth assignment is objected to, and, we think, must be disregarded. In the assignment it is urged that the court erred in refusing a special charge. The assignment is not presented in its "consecutive order," as required by rule 29 (142 S. W. xii), and may therefore be disregarded on this ground. See Barron & Clark v. White, 155 S. W. 590. Besides, there is nothing in the record to show that the action of the court was properly excepted to. Formerly the ruling of the court in giving, refusing, or qualifying instructions to the jury was regarded as excepted to in all cases. See Revised Statutes, art. 2061. But this article was amended by the act approved March 29, 1913 (see General Laws 1913, p. 113), where it is provided that the court's charge shall be in writing and shall be submitted to the respective parties or their attorneys for inspection, and a reasonable time given them in which to examine it and present exceptions thereto, "which 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." Rev. St. art. 1971, as amended. Article 1973, Revised Statutes, is also amended so as to read:

"Either party may present to the judge, in writing, such instructions as he desires to be given to the jury; and the judge may give such instructions, or a part thereof, or he may refuse to give them, as he may see proper, and he shall read to the jury such of them as he may give, provided, such instructions shall be prepared and presented to the court and submitted to opposing counsel for examination and objection within a reasonable time after the charge is given to the parties or their attorneys for examination."

See Gen. L. 1913, p. 114.

The same law amends article 2061 of chapter 19 of the Revised Statutes, making it the duty of a party dissatisfied with a ruling of the court to except thereto at the time it is made, and prescribing the requisites of bills of exceptions, so as to read:

"The ruling of the court in the giving, refusing or qualifying of instructions to the jury shall be regarded as approved unless excepted to as provided for in the foregoing articles."

See Gen. L. 1913, p. 114.

It follows that, in order for a party litigant to now invoke our revisory power over a ruling of the court in giving charges, it is necessary to show not only that the objections to the charge had been presented before the charge was read to the jury, but also that formal exception was taken at the time to the action of the court in giving the charge complained of. Where the complaint is, as here, of the action of the court in refusing a special instruction, exception to the refusal must be made at the time and the exception made part of the record by a proper bill of exception. Otherwise the ruling must be approved. The assignment under consideration refers us to bill of exception No. 4. No such bill appears in the record, nor do we otherwise find that exception to the action of the court in refusing the special charge in question was made, as provided by the amended act quoted. The ruling must therefore, in accordance with the act, be considered as approved.

The remaining question presented is whether the evidence is sufficient to sustain the verdict of the jury. While the evidence is conflicting, we think, as a whole, it supports the verdict and judgment. We will not quote the testimony in detail, but the landlord testified that ...