I. & G. N. R'y Co. v. Brett

Stayton, Associate Justice.— The motion to quash the citation in this cause for supposed defects therein was filed on the 9th of June, 1882, and neither that motion, nor the like motion tiled September 9, 1882, were called up and acted on until the loth day of March, 1883, at which time it was overruled. Two terms of the district court for Bexar county, beginning on the first Mondays in September and December following the filing of the motion on June 9,1882, intervened before the motion was called up and acted upon. Under this state of facts it is unnecessary to consider any question raised as to the sufficiency or service of the citation; for if the motion was correctly overruled, no damage legally resulted to the appellant by the ruling; and if the ruling in either respect was erroneous, it must be held unimportant. The statute provides: “Where the citation or service thereof is quashed on motion of the defendant the case may be continued for the term, but the defendant shall be deemed to have entered his appearance to the succeeding term of the court.” R. S., 1243. “All motions relating to a suit pending, which do not go to the merits of the case, may be disposed of at any time before the trial of the cause.” R. S., 1455. Under those statutes, if the citation or service thereof was defective, the judgment of the court so declaring it might have been had at the term at which it was filed, and in such case the appellant would have been deemed to have made an appearance to the succeeding term. It is urged that the overruling of the motion was error; if error at the trial term, it would have been error at the term at which the motion was filed; if, however, a ruling had then been made, the cause would have stood as an appearance cause for the next term. The intention of the statute is to give the person upon whom a defective citation is properly served, or upon whom a proper citation is defectively served, in all -cases in which a defendant by motion points out such defect, until the next term to make his defense to the merits; but it contemplates that the cause shall stand [487] as an appearance case to the succeeding term, without further notice than that which the defendant gets through the defective citation or service, and the inspection which he is presumed to make of the original papers on file in the court. The appellant might have had the motion acted on at the term at which it was filed, and we are of the opinion that its failure to do so, no excuse for not so doing appearing, operated a waiver of the right to urge it at any subsequent term. It was the actor in the motion, and cannot make its own inaction a ground for procrastinating the trial for a longer time than it would have been, had the motion been acted on and sustained at the term at which it was filed. We do not wish to be understood as intimating that either the citation or its service was defective. The assignments of error, based on the supposed action of the court overruling the appellant’s general and special demurrers, cannot be considered; for it does not in any manner appear that the court ever acted or was requested to act on them. The special demurrer found in the transcript went to matters of form and want of particularity of statement in the petition of the several distinct items of injury for which damage was claimed, which by the failure of the appellant to have acted on by the court must be deemed to have been waived. We deem it, however, proper to say that no such particularity of statement as is insisted in appellant’s brief was necessary has ever been required in actions of this kind. The testimony of the witness that the appellee was thrown into a ditch in which there was water, by the blow received from appellant’s locomotive, was but the narration of the facts of the case as the witnesses saw them in their natural order, and without giving any prominence whatever to it as a ground of damage or otherwise. As bearing, however, on the question of extent of injury done to the appellee, the facts that he was thrown into the ditch, its depth and general condition, and that he was unable to extricate himself therefrom, the evidence was in no way objectionable. The testimony of the witness, as to the sum which he had paid out for the appellee for medicines and other necessaries during his confinement to his room, was admissible, under the existing facts shown. If the statement of the witness was thought to be general, a cross-examination, which in this respect does not seem to have been made, would probably have developed the particular items for which [488] the money was expended with as much particularity as, in the nature of things, a witness, who .had waited on an invalid for weeks, could be expected to state in reference to medicines and ' other necessaries used and paid for during the time. The charge of the court gives no ground of complaint whatever to the appellant; on the contrary, it presented the case to the jury most favorably to it, and if there be ground for complaint in this respect it was with the appellee. The evidence is somewhat conflicting in reference to the care used by the servants of the appellant; but if no regard be paid to the evidence bearing on this question which was offered by the appellee, and the evidence of the appellant’s witnesses alone be considered, then the jury would have been justified in finding that the injury resulted from the failure to use such care as the statutes of this state require and common prudence would suggest. There is ample evidence, if we look to that offered by the appellee, to have justified a finding of gross negligence. There is no conflict in the evidence as to the exercise of care by the appellee. The jury, under all the evidence, were the judges of the amount of damage to which the appellee was entitled, and while the verdict seems large, there is nothing in the record which would authorize this court to say, that it is clearly excessive. We find no error requiring a reversal of the judgment, and it is affirmed. Affirmed. [Opinion delivered May 2, 1884.]