Thorne v. Dashiell

• Decision Date: 27 October 1916
• Docket Number: (No. 616.)
• Parties: THORNE v. DASHIELL.
• Court: Texas Court of Appeals

189 S.W. 986

THORNE v. DASHIELL.

(No. 616.)

Court of Civil Appeals of Texas. El Paso.

October 27, 1916.

Rehearing Denied December 7, 1916.

Appeal from Leon County Court; C. D. Craig, Judge.

Suit by N. E. Thorne against B. D. Dashiell. Judgment on peremptory instruction for defendant, and plaintiff appeals. Affirmed.

J. M. Chatham, of Centerville, and W. H. Reid, of Somerville, for appellant. Wm. Watson and L. T. Dashiell, both of Centerville, for appellee.

HIGGINS, J.

Thorne brought this suit to cancel two promissory notes executed and delivered by him to appellee and to enjoin the negotiation thereof. Upon trial, a peremptory instruction was given in favor of the defendant, in accordance wherewith verdict was returned and judgment rendered.

Various assignments relate to the correctness of the court's action in giving the peremptory instruction. Appellant filed written objections to the instruction, but there is nothing in the record to show that they were presented to the court before his charge was read to the jury as is required by article 1971, Rev. St., as amended by chapter 59, General Laws 33d Legislature, p. 113. The provisions of this act were considered at some length by the Supreme Court in Railway Co. v. Dickey (Sup.) 187 S. W. 184, and it was distinctly held that there must be some authentic record of the fact that the objections to the charge urged upon appeal were in fact presented to the trial court, and presented before his charge was read to the jury. For the want of any such record in this case, the majority are of the opinion and hold that all assignments, urging objection to the charge, should be overruled. This conclusion is inevitable under the Dickey Case, unless it be that a peremptory charge is not a charge within the purview of the act mentioned. The majority of the court are of opinion that the act is applicable to such charges. It has been so held by nearly all of the various Courts of Civil Appeals. Railway Co. v. Wheat, 173 S. W. 974; Needham v. Cooney, 173 S. W. 979; Railway Co. v. Feldman, 170 S. W. 133; Case v. Folsom, 170 S. W. 1066; Bohn v. Burton-Lingo Co., 175 S. W. 173; Wickizer v. Williams, 173 S. W. 288; Railway Co. v. Wilson, 176 S. W. 619; Denison, etc., v. McAmis, 176 S. W. 621; Donaldson v. McElroy, 184 S. W. 1100; Commonwealth, etc., v. Bryant, 185 S. W. 979; Strong v. Harwell, 185 S. W. 676; McCall v. Roemer, 186 S. W. 409; Walker v. Haley, 181 S. W. 559. See, also, expression of opinion by Associate Justice Hawkins of the Supreme Court in Beaty v. Railway Co. (Sup.) 185 S. W. 298, at page 304.

Chief Justice Harper does not concur in this view, being of the opinion that a peremptory charge is not "a charge on the law of the case," nor does it submit issues of fact as affirmatively required by the concluding sentences of article 1971; therefore does not constitute a charge within the meaning of said article, and that it has no application to such charges. The majority believe such a charge to be a concrete application of "the law of the case" to the facts, and that it is within both the letter and spirit of the act noted, and to hold otherwise would be in obvious conflict with the legislative intent; that the Legislature did not contemplate any...