Von Boeckmann v. Loepp
| Decision Date | 08 April 1903 |
| Citation | 73 S.W. 849 |
| Parties | VON BOECKMANN v. LOEPP. |
| Court | Texas Court of Appeals |
Appeal from Guadalupe County Court; F. C. Weinert, Judge.
Action by E. H. Von Boeckmann against Julius Loepp. From a judgment for defendant, plaintiff appeals. Affirmed.
Dibrell & Mosheim, for appellant. Jas. Greenwood and Adolph Seidemann, for appellee.
In this case we have overruled two motions filed by appellee—one to dismiss the appeal because in the county court, on appeal, plaintiff increased the amount of his claim by an item, involved in the same transaction, which had not been asserted in the justice's court, and which appellee alleges was done for the purpose of giving this court jurisdiction in the case, and the other to strike out a bill of exceptions which related to the action of the trial court in overruling a motion for continuance, which bill of exceptions is alleged to have been in fact signed and filed after the term, although the record shows differently. This court has no jurisdiction to try this latter question on affidavits, but would, in a proper case, allow appellee a reasonable time to have the bill corrected, if it should be, in the county court. Boggess v. Harris, 90 Tex. 476, 39 S. W. 565. The application for continuance is before us, and it was manifestly insufficient, under the rule laid down in Ry. v. Woolum, 84 Tex. 570, 19 S. W. 782. As it is clear the action of the court in overruling the continuance would not be disturbed in any event, the matter need not be further noticed. As to the other motion, we think appellant had the right to amend and increase his claim for damages, even if it did happen to give this court appellate jurisdiction of the case.
The first assignment is that the court erred in refusing the continuance. This, for the reason above given, is overruled.
The second assignment alleges that the court erred in the charge for the reason that it predicated plaintiff's right to recover upon false representations, and not upon a warranty of soundness of the horse given plaintiff in trade. A complete answer to this assignment is the fact that plaintiff nowhere in his pleadings refers to any warranty, but bases his action on false representations.
The third assignment cannot be sustained. The burden of proof being upon plaintiff, it was not error to repeat this rule of law in the charges. It was not the case of submitting an issue which might be repeated so often as to give it undue prominence. Indeed, it is difficult to see how the court would commit error by impressing upon a jury the rule that plaintiff must prove his allegations by a preponderance of evidence. This complaint of undue repetition is, however, directed to clauses 3 and 4 of the charge, and we find that the rule was stated in only one of them.
There was no error in the charge as complained of by the fourth assignment. The petition alleged the horse to have been unsound, and seems to specify...
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