author: HIGGINS, J.

text:
    AHLREP v. JAMES A. DICK CO.
    (No. 505.)
    (Court of Civil Appeals of Texas. El Paso.
    Dec. 9, 1915.
    Rehearing Denied Jan. 6, 1916.)
    Appeal and E«roe <&wkey;934 — Statement op Facts — Necessity—Presumptions.
    In an action to recover a balance due on an account, there was no statement of facts in the record, but in the clerk’s transcript appeared an itemized account showing a balance of $391.-59, due by a person other than defendant. This account was not verified as required by statute. Held that, in the absence of a statement of facts, it must be assumed that there was other sufficient evidence to support the judgment.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3777-3782; Dec. Dig. &wkey; 934.]
    Error from Brewster County Court; A. M. Turney, Judge.
    Action by the James A. Dick Company against George Ahlrep. There was judgment for plaintiff, and defendant brings error.
    Affirmed.
    J. D. Martin, Jr., of Alpine, for plaintiff in error. J. C. Brooke, of Alpine, for defendant in error.
   HIGGINS, J.

Defendant in error sued plaintiff in error to recover a balance alleged to be due upon the purchase price of goods, wares, and merchandise sold and delivered. Defendant made default. The judgment entered recites that after hearing the evidence, the court found that defendant was indebted to plaintiff in sum of $391.59, less a credit of $100, “evidenced by account duly itemized, verified, and on file in this cause.” Judgment was entered for said amount.

There is no statement of facts in the record, but in the clerk’s transcript appears an itemized account, showing a balance of $391.-59, due by Daisy Baking Company to defendant in error for goods, wares, and merchandise. This account is verified by an affidavit not in compliance with article 3712, Revised Statutes. It is assigned as error that the court erred in rendering judgment upon the account sued upon because the only evidence offered in support thereof was the account above mentioned; and (1) the affidavit thereto was insufficient; and (2) the account was against the Daisy Baking Company and not against plaintiff in error.

In the absence of a statement of facts, it must be presumed that there was competent and sufficient evidence offered upon the trial to support the judgment rendered. There is nothing whatever to affirmatively show that the account appearing in the clerk’s transcript against the Daisy Baking Company is the itemized, verified account referred to in the judgment, as the basis of the court’s finding against plaintiff in error.

It can only be surmised that it is so. We cannot reverse a judgment upon a mere surmise that it was rendered upon incompetent or insufficient evidence.

Affirmed.
      ©s^For other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: HARPER, C. J.

license: Public Domain

text:
    TEXAS & P. RY. CO. v. MIDLAND MERCANTILE CO.
    (No. 493.)
    (Court of Civil Appeals of Texas. El Paso.
    Dec. 9, 1915.)
    1. Justices of the Peace <&wkey;159 — Appeals —Substitution op New Bond — “Defective.”
    Where a bond for appeal from a judgment of justice court did not appear to- have been filed or approved, it is not a defective bond within Rev. St. 1911, art. 2104, which may be corrected by amendment or for which a now bond may be substituted.
    [Ed. Note. — For other cases, see Justices of the Peace, Cent. Dig. §§ 544, 550-578; Dec. Dig. &wkey;>159.
    For other definitions, see Words and Phrases, Second Series, Defective.]
    2. Justices of the Peace <&wkey;159 — Appeal Bond — Approval.
    Rev. St. 1911, art. 2393, declares that the party appealing, his agent or attorney, shall, within ten days from the entry of judgment, file with the justice a bond to be approved by the justice. Appellant’s appeal bond did not appear to have been either filed or approved, although there was a charge in the justice’s fee bill for taking the bond. Held, that where the justice testified he did not remember whether the bond was given to him or not, the county court has no jurisdiction of the appeal, the bond not having been filed and approved, as required by statute.
    [Ed. Note. — For other cases, see Justices of the Peace, Cent. Dig. §§ 544, 550-578: Dec. Dig. &wkey;159.]
    Appeal from Midland County Court; Frank. A. Judkins, Special Judge.
    Action by the Midland Mercantile Company against the Texas & Pacific Railway Company, begun in justice court and appealed by defendant to county court. The appeal being there dismissed, defendant appeals.
    Affirmed.
    Jno. B. Howard, of Pecos, for appellant. Chas. Gibbs, of Midland, for appellee.
   HARPER, C. J.

Appellee filed this suit in justice court, Midland county, against the appellant, Texas & Pacific Railway Company, for the value of $185 of an automobile alleged to have been converted by said railway company. Judgment was rendered for the appellee in the justice court. Notice of appeal was given to the county court. Appeal bond was duly executed and same was presented to the justice of the peace, but was not approved or filed by the justice. Thereafter the papers in the case, including the appeal bond, were transmitted to the county court and filed by the county clerk. Thereupon appellee filed its motion to dismiss the appeal from the justice court upon the ground that the appeal bond did not appear to have been either filed or approved. The motion was sustained and the appeal dismissed, from which action of the county court this appeal is perfected.

Appellant’s first assignment is that the court erred in refusing to permit the appellant to substitute a new bond on appeal, wherein a motion had been filed to quash the appeal bond. The bond in this instance is not a defective bond; therefore not such as can be amended or substituted under the statute. Article 2104, Revised Statutes 1911.

The second is that the court erred in dismissing the appeal because the justice of the peace who tried the case failed to indorse his approval and place his file mark upon the appeal bond for the reason that the transcript of the case sent up from the justice court showed that said justice had received his fees for filing and approving said appeal bond, and that his failure to indorse his approval thereon was an oversight upon the part of the officer. First proposition is that an appeal bond from the justice court to the county court, otherwise good, is not void by reason of the failure of the justice of the peace to mark “filed” and “approved” thereon. The question of whether or not the bond is void or valid is not the question presented here. This court nor the county have any authority to pass upon whether the bond which was found among the papers of the case in the custody of the county clerk was sufficient and should have been approved by the justice, but the sole question is: Did the appellant comply with the prerequisites to a right of appeal? Article 2393 provides that the party appealing, his agent or attorney, shall, within ten days from the date of the judgment, file with the justice a bond, with two or more good and sufficient sureties, to be approved by the justice, etc., and the mere fact that the justice entered upon his fee bill a charge for taking appeal bond is not sufficient to establish that the bond was in fact filed within the time prescribed, nor of its approval. There is no charge upon the justice fee bill for approving and filing appeal bond, as asserted by appellant. True the attorney for the appellant testified that he gave the bond to the justice within the ten days, but there is no other evidénce of its approval than the entry of a charge for taking the bond. The justice was present and testified that “he did not remember whether or not this appeal bond was given him by appellant’s attorney or not, and that he did not know at this time whether he would have approved the same or not as that was a matter of speculation.” We .think the proper rule in such cases was established by the opinion in Lyell v. Guadaloupe County, 28 Tex. 58, by the following:

“In Burr v. Lewis, 6 Tex. 76, it has been hold to be indispensably necessary, in. order to confer jurisdiction on this court by appeal, that these two requirements of the statute shall be complied with, and that an appeal is not perfected, and that consequently the jurisdiction of the court does not attach.”

So transposed to fit the facts of this case, is the law applicable thereto? The county court had no jurisdiction over the case.

“If no question of jurisdiction were involved, it might well be held,” as contended for by appellant here, “that all errors and irregularities committed in taking the appeal had been waived. But consent cannot confer jurisdiction.” Lyell v. Guadaloupe County, 28 Tex. 58.

The county court did not err in dismissing the appeal, and its order to that effect must be affirmed.

Affirmed.
      iSr^For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: FLY, C. J.

text:
    CONLEY v. DIMMIT COUNTY STATE BANK.
    (No. 5527.)
    (Court of Civil Appeals of Texas. San Antonio.
    Nov. 10, 1915.
    On Motion for Rehearing, Jan. 5, 1916.)
    1. Chattel Mortgages <&wkey;49 — Live Stock-Description — N otice.
    A description of property in a mortgage as “one Jersey cow, unbranded, bought from Willie Gardner, Asherton, Tex.,” the mortgage being duly registered, was sufficient to charge a subsequent purchaser with constructive notice of the mortgage, where the mortgagor had only one cow.
    [Ed. Note. — Eor other cases, see Chattel Mortgages, Cent. Dig. §§ 99-92; Dec. Dig. <&wkey;49J
    2. Chattel Mortgages &wkey;>47— Description —Construction.
    Descriptions in mortgages are to be interpreted in the light of the facts known and before the minds of the parties at the time of their execution.
    [Ed. Note. — For other cases, see Chattel Mortgages, Cent. Dig. §§ 87, 88, 96-103; Dec. Dig. <&wkey;47.]
    3. Evidence &wkey;>460 — Aiding Description-Parol Testimony.
    Parol testimony, such as that the mortgagor had no other property or like evidence, is admissible to aid the written description of a chattel mortgage.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 2115-2128; Dec. Dig. &wkey;460.]
    4. Appeal and Error <&wkey;738 — Grouped Assignments.
    Where several assignments of error on different matters are grouped, they should not be considered on appeal.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3028, 3029; Dec. Dig. &wkey;> 736.]
    5. Trial <&wkey;253 — Constructive Notice — Charge.
    A charge on the subject of notice to third persons dealing with mortgaged property, which eliminated constructive notice altogether, was properly refused.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 613-623; Dec. Dig. <®=»253.]
    On Motion for Rehearing.
    6. Chattel Mortgages <&wkey;49 — Description —Sufficiency—Constructive Notice.
    One who purchased a Jersey cow from the vendee of the mortgagor thereof, without asking the vendee how he came into possession of the animal, and without making inquiries of any one, or consulting the records, where the mortgage was duly registered, the description being “one Jersey cow, unbranded, bought of Willie Gardner, Asherton, Tex.,” was not protected as an innocent purchaser without notice against the claim of the mortgagee, though the vendee was a man of wealth and stood well in the community, since to charge one dealing with mortgaged property with constructive notice of the mortgage it is not necessary that the 'property be so described as to be capable of identification from the written recital; the description being sufficient if it points to evidence whereby the precise thing mortgaged may be ascertained.
    [Ed. Note. — For other cases, see Chattel Mortgages. Cent. Dig. §§ 90-92; Dec. Dig. <@=»49.]
    Appeal from Dimmit County Court; J. O. Rouse, Judge.
    Action by the Dimmit County Bank against G. W. Vaughn and another, in which judgment was rendered foreclosing a chattel mortgage. R. S. Conley filed a claimant’s affidavit and bond to recover a cow seized under the foreclosure. From the judgment for the Bank, claimant appeals.
    Affirmed.
    Thompson & Gulley, of Carrizo Springs, and Matt Cramer, of Asherton, for appellant. Vandervoort & Johnson, of Carrizo Springs, for appellee.
   FLY, C. J.

Appellee sued G. W. Vaughn, as principal, and Arthur Ivy, as surety, on a promissory note and to foreclose a chattel mortgage on a certain Jersey cow. Judgment was obtained for $358.35, and the foreclosure had, and an order of sale issued, and the cow seized. Appellant filed a claimant’s affidavit and bond, and the cause was tried in the justice’s court, and then appealed to the county court, where judgment was rendered for appellee in the sum of $110. It is the contention of appellant that the description m the mortgage was too vague and indefinite to furnish identification of the cow and that he was therefore an innocent purchaser without notice. The description was, “One Jersey cow, unbranded, bought from Willie Gardner, Asherton, Tex.,” and it is not contended that the sheriff had any difficulty in locating the cow, and it is admitted that he had her in his possession under the order of sale, when she was claimed by appellant. The evidence seems to intimate that vaughn had no other cow. The description was sufficient, the mortgage being duly registered, to put appellant upon inquiry before he bought the cow from Yang'nn. He was charged with constructive notice that Vaughn had mortgaged a Jersey cow, that he bought from one Gardner, to appellee, that the mortgage had not been satisfied, nor the debt settled.

Descriptions in mortgages are to be interpreted in the light of the facts known and before the minds of the parties at the time of their execution. Parol testimony is admissible to aid the written description, such as that the mortgagor had no other property, or like evidence. National Bank v. National Bank, 84 Tex. 369, 19 S. W. 517. A description no more explicit than the one under consideration has been upheld by the Court of Civil Appeals of the Third District. Watt v. Parlin, 44 Tex. Civ. App. 439, 98 S. W. 428. The case of Pitluk v. Butler, 156 S. W. 1136, cited by appellant, fully sustains the judgment of the lower court.

The second, third, fourth, and fifth assignments, although on different matters, are grouped, and. should not be considered. However, it1 may be , stated that a consideration of them shows that each and all of them are without merit.

The sixth, seventh, eighth, ninth, and tenth assignments are only reiterations as to the description of the cow, and they are overruled.

The eleventh assignment of error complains of the refusal to give a certain charge on the subject of notice which eliminated constructive notice altogether. It did not embody the law applicable to the case and was properly refused. As said by appellants, there is but one question in the case, that as to the description of the cow, which we hold was sufficient.

The judgment is affirmed.

On Motion for Rehearing.

As said by the Supreme Court in Bank v. Bank, 84 Tex. 369, 19 S. W. 567, in discussing a description of- cattle in a mortgage:

“Written descriptions are to be interpreted in the light of the facts known and in the minds of the parties at the time. They are not prepared for strangers, but for those they are to affect—the parties and their privies.”

The description in the chattel mortgage was sufficient to put appellant upon inquiry, and by such inquiry he could have learned that the cow he intended to buy had been mortgaged by Vaughn to appellee. It does not appear that he even asked Peddicord how he obtained the cow. Blythe v. Crump, 28 Tex. Civ. App. 327, 66 S. W. 885. In the case cited the contest was between a man claiming to be an innocent purchaser and the mortgagee, and the court held that the description, “two gray mares sold by Sirup-trine to Vandiver,” was sufficient to excite inquiry.

Appellant bought the cow from Peddi-cord, and made no inquiry as to how he came in possession of the cow, and did not make inquiries of any one or consult the records. Doubtless, if he had asked Peddicord from whom he obtained the cow, he would have learned that Vaughn had sold the cow, and then the chattel mortgage notified him that Vaughn had mortgaged a Jersey cow, and further inquiry would have given him the knowledge that the cow held by Peddicord was the identical animal mortgaged by Vaughn. Instead of such vigilance, he trusted in Mr. Peddicord, who “stood well in the community and was reputed to be worth 142,000.” No matter how accurately the cow may have been described, if appellant’s trust and confidence in Mr. Peddicord can transform him into an innocent purchaser, appellee would lose its security.

It is not necessary that mortgaged property should be so described as to be capable of being identified by the written recital, but the description is sufficient if it points to evidence whereby the precise thing mortgaged may be ascertained. Jones on Chattel Mortgages, §§ 53 and 54; Frick v. Fritz, 115 Iowa, 438, 88 N. W. 961, 91 Am. St. Rep. 165; Scrafford v. Gibbons, 44 Kan. 533, 24 Pac. 968. As said in the Kansas case (Mills v. Kansas Lumber Co., 26 Kan. 579):

“Resort must be had in nearly all cases to other evidence than that furnished by the mortgage itself, to enable third persons to identify mortgaged property; and generally where there is a description of the property mortgaged, and the description is true, and by the aid of such description, and the surrounding circumstances, tho third person would, in the ordinary course of things, know the property that was mortgaged, the description should be held to be sufficient.”

The description in that case was “one bay horse, aged six years.”

The motion for rehearing is overruled.
      &wkey;5Por other oases see same topic and KEY-NUMBER in all Kev-Numbered Digests ana Indexes