Sears v. Green

Quinan, J. The assignments of error are as follows in substance: 1. That the record does not show that a jury of twelve men were impaneled to try the case. 2. This assignment is abandoned. 3. That the verdict does not appear upon the minutes of the court. 4. This assignment is substantially the same as the preceding. 5. That the judgment does not show on what account it was rendered; that if for cattle it should have been in the alternative! 6. That the record does not show that the special issues were made up under'the direction of the court. 7. The seventh assignment is substantially the same as the third and fourth. 8. That the judgment of the court is not in accordance with any verdict of the jury. 9. That the statement of facts does not warrant any judgment in favor of plaintiff. 10. That the defendants were entitled to a new trial for the reasons set forth in their motion. We will consider these assignments briefly in the order in which they are made. The first assignment is not well taken. The objection is frivolous. The transcript recites that “ a jury came of good and lawful men, to wit, B. G. Childress and eleven others, to try the cause,” and this is sufficient. There was no necessity that the names of all the jurors should be set out in the record. If the- entry at the February term was insufficient, the entry at the subsequent term amends it, and this the court had power to do. Clark v. Davis, 7 Tex., 560; Johnson v. Smith, 14 Tex., 412. [732] The third, fourth and seventh assignments of error raise the question whether the special issues submitted to the jury, and the answers of the jury thereto, must be incorporated in the minutes of the court. It is undoubtedly proper that the issues and the verdict should be entered in the minutes. It is the invariable practice, so far as we are advised, and ought to be adhered to. They constitute an important part of the proceedings in the case, and ought assuredly to be entered in the record of the proceedings of the court; but we are not prepared to say that the issues submitted and the answers of the jury are any the less a part of the record, because not recorded in the minute book. In the present case the minutes do recite “ that the special issues made up under the direction of the court were submitted to them by the court to be answered by the jury, and that afterwards the jury returned into court their verdict, being the answers to the several issues so submitted by the court, which-verdict and answers were received by the court, and were a part of the record.” In the return of the clerk to the certiorari issued to perfect the transcript, the special issues are copied, and an indorsement on the back: “ Special issues submitted by and under the direction of the court. F. P. Wood, Judge.” The verdict of the jury is also set out signed, “ R. G. Childress, Foreman.” And the certificate of the clerk attests that these special issues and findings of the jury “appear of record now on file in my office.” What were the special issues submitted, and what the answers of the jury thereto, is thus, we think, abundantly identified, and that they were made a part of the record, and are such, in fact, is certified to us in the only way it could be certified — by the custodian of the record. We are not advised of any law which imperatively requires that the issues and verdict can be recorded only in the minute book in civil proceedings. If the omission so to do is irregular, it is not such error as should deprive the plaintiff of the benefit of her verdict and vitiate the proceedings. The fifth assignment, that the judgment does not show on what account it was rendered, and that if for cattle it should have [733] been in the alternative, is not well taken. It is not necessary to recite the facts in the judgment. The answers of the jury to the issues presented them are sufficient to support a judgment for $1,200 for rent (balance of amount over repairs), and for $120 for cattle sold, and $24 for two cows and calves sold; but Sears is allowed $100 for taking care of the cattle, which deducted, the amount of the judgment should be for $1,244, instead of $1,264. The plaintiff having remitted the sum of $20, the judgment for the residue is not unsupported by the answers, and the objection made, that the judgment should have been for cattle remaining in possession of the defendant, or in the alternative, does not apply, for there is then no recovery except for cattle sold. Hoffman v. Bowen, 17 Tex., 507; Cook v. Hancock, 20 Tex., 3; Hamilton v. Ward, 4 Tex., 356. The sixth assignment of error is not supported by the record. The judgment recited that the issues were made up under the direction of the court. The seventh and eighth assignments we have already considered under the previous assignments. The ninth assignment of error questions the sufficiency of the facts proven to warrant the judgment. The verdict of the jury was returned at the February term, 1874. The motion for a new trial made in this case was not filed until June 6, 1874, and it does not appear to have been called to the attention of the court, and was never acted upon. We must therefore consider it as waived. It is as if it had never been made. It cannot be considered for any purpose, and the defendants below acquire no right because of it. It is true that in Mason v. Russell, 1 Tex., 721, Lipscomb, J., intimates the opinion that a motion not granted would be considered as overruled; but this expression of opinion was not acted upon in that case, and was not necessary to its decision. In Foster v. Smith, 1 Tex., 70, the court say: “Ho judgment ought to be reversed in this court merely on the ground that the verdict was not supported by the testimony unless a motion had been made in the court where the verdict was rendered, and, overruled.” And in Cotton v. The State, it is'said: “ The rule announced in this case (Foster [734] v. Smith), it is believed, has been observed to the present time, and it is not intended to question its correctness in civil cases.” In Hart v. Ware, 8 Tex., 115, it is said that where there was no motion for a new trial the judgment would not be reversed on the ground that the verdict was not warranted by the evidence, and this is the settled law of the court. Cain v. Mack, 33 Tex., 136; Pas. Dig., 1473; McKean v. Ziller, 9 Tex., 58; Reynolds v. Williams, 1 Tex., 312. [Opinion delivered December 20, 1880.] We conclude that the defendants, by a motion for a new trial made at a subsequent term to the rendition of the verdict, and never called to the attention of the court and never acted'upon, have not placed themselves in a position to be entitled to a revision of their ca!se upon the sufficiency of the testimony to'warrant the verdict. The tenth assignment of error, for the reasons just stated, is not well taken. They were not entitled to a new trial. It is insisted that there is fundamental error in not making the minor, J. W. Helm, a party, and in afterwards rendering-a decree against him. This point is first raised in this court upon appeal. It, was not objected in the court below, nor is it assigned for error. And the guardian of the minor does not appeal. The objection is made by Sears and. wife. If the minor was not properly made party, the decree against him cannot affect his interests. Whether, as entitled in remainder to the property in controversy, he was a necessary party, may admit of some question. Story, Eq. PL, 140, 161, 766. But it is not perceived in what way the interests of Sears and wife are injuriously affected by the judgment against the minor, and unless injury has resulted to them therefrom they cannot now for the first time be heard to complain. Hughes v. Roper, 42 Tex., 125; Herndon v. Bremond, 17 Tex., 434. We conclude that the judgment should be affirmed for the amount rendered, less the sum remitted, at the costs of the defendants in error. Affibmed.