Walter v. Rowland

• Decision Date: 15 November 1916
• Docket Number: (No. 5718.)
• Citation: 189 S.W. 981
• Parties: WALTER v. ROWLAND.
• Court: Texas Court of Appeals

189 S.W. 981

WALTER v. ROWLAND.

(No. 5718.)

Court of Civil Appeals of Texas. San Antonio.

November 15, 1916.

Rehearing Denied December 13, 1916.

Appeal from District Court, Bexar County; R. B. Minor, Judge.

Action by Joe J. Walter against W. J. Rowland. From a judgment for defendant, plaintiff appeals. Affirmed.

Leo Tarlton and Ryan, Matlock & Reed, all of San Antonio, for appellant. Ben H. Kelly and Douglas Cater, both of San Antonio, for appellee.

FLY, C. J.

This is a suit instituted by appellant against appellee to recover certain personal property or its value. It was alleged that appellant leased to appellee about 100 acres of land for a year, that appellant furnished teams and food for them, that appellee bound himself to cultivate the land and plant thereon corn and the farm and vegetable products usually grown on farms in the vicinity, and furnish all labor necessary to raise and harvest all crops planted on the land, and to deliver to appellant one-half of all of said crops. It was alleged that it was also agreed that if any advances in money were made by appellant, they should bear interest at the rate of 10 per cent., and should be repaid out of the first part of the crop belonging to appellee. It was further alleged that appellant had fully complied with the terms of the contract and furnished appellee with two horses and three mules and the necessary farming implements and cash, groceries, and supplies in the sum of $132; that appellee planted about 40 acres in oats, about 30 acres in corn, and about 6 acres in sugar cane, and raised and gathered about 2,500 bales of oates, valued at $750, and about 24 tons of sugar cane of the value of $312, that no division of the crops had been made, but that corn, sugar cane, and hay had been removed from the land by appellee, and all the crops at that time on the land were of the value of $400. There was a prayer for the foreclosure of a landlord's lien, and a judgment for the property or its value. Appellee answered that he had raised a crop of oats of the value of $750, and cane, Johnson grass, and milo maize worth about $312, 700 bushels of corn worth about $525, amounting in the aggregate to $1,587, one-half of which belonged to appellee. He denied that appellant made any advances, and pleaded damages for the seizure under a distress warrant, amounts for caring for goats, gathering corn, hauling wood, and clearing land. The cause was submitted on special issues, and on the answers judgment was rendered for appellee in the sum of $350.

Appellant filed a motion for new trial and afterwards filed an amended motion for new trial, but the first assignment of error is copied from the motion and is not found in the amended motion for new trial. The filing of the amended motion for new trial, as in the case of any other pleading, had the effect of eliminating the original motion, and nothing could be considered except what was pleaded in the amendment. Rule 14, Dist. and County Courts (142 S. W. xviii); Barrett v. Featherstone, 89 Tex. 579, 35 S. W. 11, 36 S. W. 245. The assignment of error will not be considered.

The second and third assignments of error are very imperfectly drawn, and under a strict enforcement of the rules should not be considered. They assail the sufficiency of the evidence to sustain the answers of the jury as to the value of the different...