Thomas v. Womack

• Decision Date: 01 January 1855
• Citation: 13 Tex. 580
• Parties: LARKIN R. THOMAS v. JAMES B. WOMACK.
• Court: Texas Supreme Court

13 Tex. 580

LARKIN R. THOMAS

v.JAMES B. WOMACK.

Supreme Court of Texas.

1855.

Appeal from Tyler. Action by the appellee against the appellant, for what was described in the petition as unprovoked and most unmerciful beating with intent to kill. Damages laid at ten thousand dollars. The citation was properly returned served. The defendant prefaced his answer with “exceptions” to the service of the citation, because a certified copy of the petition was not served upon him. He made affidavit of the fact, and appended the copy which the sheriff had delivered to him, which did not have the seal of court to the clerk's certificate. The answer commenced by stating that in case the exceptions to the service were overruled the defendant made the following answer, &c. The court overruled the exceptions to the service. Neither the defendant nor his counsel was present at the trial. Verdict for plaintiff, for $10,000. Motion for a new trial, supported by the defendant's affidavit showing that he had employed counsel and that he, himself, lived in Orange county, and had left home for court in time to arrive in due season, but had been detained by the sickness of his horse, and detailing facts of a most aggravating character which he could prove in extenuation, on a new trial. When the motion for a new trial was called up, the plaintiff remitted $8,500 of the damages, and the motion was overruled, and the judgment entered for $1,500 and costs. Defendant appealed.

B. C. Franklin, for appellant. I. The appellant to sustain the position assumed in the first error assigned, refers to Hart. Dig., arts. 672, 674, 675.

The copy of petition and writ were not authenicated by having the seal of the court affixed, nor did it show when the petition was filed.

II. The court erred in refusing to grant a new trial on the motion of defendant.

Could the plaintiff by entering a remittitur in this case, sounding alone in damages, avoid the granting of a new trial, which the court certainly would have granted unless the remittitur had been made.

No case can be found, or at least I have been unable to find a single case, where the plaintiff has been permitted to enter a remittitur in a case sounding in damages alone, where the sum remitted was a portion of the sum found by a jury, and within and part of the sum claimed as damages in the suit.

In the case of Jacobs v. Bangor, (4 Shep., 187,) it is said by the court, that in cases where there is no certain measure of damages, the court will not substitute its own sense of what would be the proper amount for the verdict, and will not set aside a verdict unless there is reason to believe that the jury were actuated by passion or some undue influence perverting their judgment.

In the present case the plaintiff, by remitting the $8,500, confesses that the damages are excessive; that the jury were acting under an influence that perverted their judgment; in such a case the court ought not to substitute its own sense of what would be the proper amount of the verdict, but should grant a new trial.H. N. & M. M. Potter, for appellee. Even if the service was informal, still it had effected the object intended; it had brought the party into court, and he had answered. Suppose the court had quashed the service on the motion of defendant: still he would have been in court by his answer; and if the plaintiff had taken new process and the defendant had been re-served, yet the plaintiff could not after that have taken judgment by default for want of an answer, because the answer of defendant was on file. Will this court require the District Court to do that which can only increase costs and delay parties? The defendant in a cause may appear without service of process, and is bound by such appearance.

We think there is nothing in the question in relation to the judgment.

WHEELER, J.

We do not think the objection to the service well taken. The clerk is required to furnish a certified copy of the petition for the convenience of the sheriff in making service. (Hart. Dig., art. 674.) His certificate is evidence to the sheriff that it is a copy without a comparison. But it is no part of the copy of the petition. The statute requires that all process shall have the seal of the court attached. (Hart. Dig., arts. 647, 675.) But the petition is not process which requires the seal of the court to impart to it validity and authenticity. The object of the law in requiring that the defendant be furnished with a copy of the petition is to afford him accurate information of the cause of action. For this purpose the sheriff is required to deliver to the defendant accompanying the citation “a copy of the petition.” (Hart. Dig., art. 679.) If he does so it is service. It is all the defendant has a right to require. It complies with the letter, and answers all the purposes contemplated by the law as well without as with the clerk's certificate and seal of authentication.

The remaining objection to the judgment is entitled to more consideration.

The verdict was confessedly excessive. We must suppose the Judge so regarded it, as it appears by the record that he refused the new trial, “upon the plaintiff having entered a remittitur of eight thousand five hundred dollars.” And the entering of the remittitur must be considered as an admission that the verdict was excessive. Should the remittitur have been received as an answer to the motion for a new trial on the ground of excessive damages, in such a case, where the law has set no fixed or prescribed limits to the discretion of the jury in giving damages, and affords no criterion by which to ascertain as matter of law the amount of damages which the plaintiff is entitled to recover?

In Sedgwick on the Measure of Damages (603) it is said: “Where the jury have given such excessive damages...