Miles v. Dorn

FISHER, Chief Justice. The case will be reversed on account of the error presented in appellant’s second assignment. Kleinsmith’s right as to a one-fourth interest in the cotton should have been sub [299] mitted to the jury. We understand from what is stated in .the record upon this subject that Kleinsmith recovered a judgment against Mrs. Johnson for the value of eight bales of cotton, including the two bales in controversy, in a suit against her in the nature of a conversion. This judgment was paid off and discharged by Mrs. Johnson. It appears that Kleinsmith’s interest in the cotton amounted to a one-fourth. When Mrs. Johnson paid off the judgment, the amount of which represented Kleinsmith’s interest in the cotton converted by her, she became the owner of the interest of Kleinsmith; and in the suit of Texana Dorn against her, she would have the right to assert the interest acquired from Kleinsmith. In the charge set out in appellant’s seventh assignment of error, the court also instructed the jury that they could not consider the interest of Kleinsmith in the cotton in question. If it should be held upon another trial that the averments of appellant’s answer setting up title from Kleinsmith, could not be sustained, the appellant would clearly be entitled to show that Kleinsmith still owned an interest in the cotton in question; and, if such should be the case, the appellee, Texana Dorn, would not be entitled to recover a judgment against appellant for the interest owned by Kleinsmith. What we have just said also disposes of the sixth assignment of error. We overrule all of the remaining assignments of error. We do not mean to say that the court should give a peremptory instruction, as suggested in the sixth assignment of error; nor should a charge be given as was set out under the seventh assignment of error, but the issue as to the interest of Kleinsmith should Ee submitted to the jury for them to pass upon, under appropriate instructions. Judgment reversed and cause remanded. Reversed and remanded.