Hodde v. Susan

Willie, Chief Justice. The court did not err in overruling the motion to dismiss the appeal taken from the justice’s court. The judgment of the justice was rendered against Susan for a return of the property levied on and claimed by him; and it was also a judgment against him for $11.94 damages. This latter part of the judgment was rendered also against the sureties of Susan upon his claim bond. Susan alone seems to have appealed from the judgment of the justice of the peace. The case appealed from is described in the appeal bond by its title and number, and is otherwise identified. Under a state of circumstances similar to those now presented to us, this court, in the case of Herndon v. Bremond, 17 Tex., 432, held an appeal bond sufficient. The effect of that decision is, that when the case is identified by its number and title on the docket, and the judgment accurately described so far as it affects the appellant, a defect, such as is here complained of, is not a misdescription of the judgment, but only [310] not so full and particular a description as might have been given of its contents. And it was further said that the mere omission in the bond of a full description of the judgment in every particular, if it be sufficiently described to identify it, has not been held a ground for dismissing the appeal. The first assignment of error, therefore, is not well taken. The second assignment of error cannot be sustained because the record does not show that the charge, alleged to have been refused by the court, was ever asked to be given to the jury. When the record fails to show that a charge was refused, we cannot, of course, take the alleged refusal into consideration. Hill v. Crownover, 4 Tex., 8; James v. Fulcrod, 5 Tex., 512. The statement of counsel, in a motion for a new trial, to the effect that the charge was asked and refused, cannot be accepted as evidence of the fact. The court may have overruled that ground for a new trial for the reason that it disagreed with counsel as to the alleged fact of refusal. The general charge of the court was correct as far as it went, and if the appellant thought it should have been more definite and explicit, he ought to have asked charges with that view and for that purpose. The statement of facts does not show that the goods were in the possession of Newman at the time they were seized under execution. Hence the court could not charge the jury that the burden of proof was upon the claimant. R. S., arts. 4838, 4839. The goods might have belonged to Newman before the levy, and have been restored to him after the claim bond was executed, and yet not have been in his possession at the date of the levy. This shifting of the ownership or possession from Newman to the claimant, and from the claimant to Newman, might have tended to show where the true ownership lay, but this did not determine upon whom was the burden of proof. That depended upon the apparent visible possession at the time of seizure. Moreover, the whole evidence taken together shows possession in Susan at the time the levy was made, and the court could not, under such circumstances, have cast the burden of proof upon any one else than the plaintiff. As to the only remaining assignment of error insisted upon, it is enough to say that it is a well settled rule of this court that an assignment which complains only that the court erred in overruling a motion for a new trial is not in compliance with the rules and will not be considered. Pearson v. Flanagan, 52 Tex., 266; H. & [311] T. C. R. R. Co. v. McNamara, 59 Tex., 255; Railway Co. v. Shafer, 54 Tex., 641; Green v. Dallahan, 54 Tex., 281. There is no error in the judgment, and it is affirmed. Affirmed. [Opinion delivered February 13, 1885.]