Whitaker v. Browning , 1912 Tex. App. LEXIS 1400 ( 1912 )

Conclusions.

DUNKLIN, J,

[1] In view of the disclaimers filed by all parties, leaving the only issues to be tried issues of boundary only, the correct location of which depended upon the same':proof, namely, the original'location of the block of surveys, including all the land in controversy, and which were all located at the same time by the same surveyor, appellants could not have been prejudiced by the consolidation of causes mentioned in thé first assignment of error. -

[2] There was no error in overruling appellants’ application for continuance, as the testimony of the absent witness was in the record of the trial of the companion ease of Jennie Johnson v. C. C. Haile, and was available to appellants under the agreement signed by all parties that the same might be used as evidence upon the trial of this cause.

[3] It clearly appears that the communication with the jury by the trial judge, made the basis of the third assignment of error, had no efiieet whatever upon the minds of the jury in reaching their verdict. Article 2021, Revised Statutes 1911, which was enacted in 1905, makes a communication with a jury during their -deliberations a sufficient ground for a new trial in the event only that such communication be found material. That statute is broad enough to include the action of the judge now complained of within the communications therein mentioned. This statute was not discussed by our Supreme Court in the case of Tex. Mid. Ry. v. Byrd, 102 Tex. 263, 115 S. W. 1163, 20 L. R. A. (N. S.) 429, 20 Ann. Cas. 137. But whether or not it was there considered can make no difference, we think, in determining the merits of the assignment now under discussion, since, under the new rule adopted by our Supreme Court, the communication would not be reversible error if no injury resulted therefrom.

In view of the fact that appellants filed disclaimers of title to the east half of A. C. H. &.B. Railway Survey No. 4, claimed by Mrs. McCarty, leaving, as above noted, the only issues to be tried between all the parties issues of boundary only, assignments Nos. 4, 5, 6, 7, 8, 9, and 11, complaining of the admission of evidence to prove-Mrs. McCarty’s title, are overruled. For the same reason there was no error in the refusal of appellants’ requested instruction No. 1 peremptorily directing a verdict in their favor against Mrs. McCarty. Viewing all the special findings contained in the verdict in the light of the evidence introduced, it is clear that the Jury concluded that the work on the ground by Surveyor Williams was correct, and that the true locations of all the disputed boundaries were the same as those recited in the Judgment afterwards rendered. Houston v. Darnell Lbr. Co., 146 S. W. 1061. We are of the opinion further that the verdict and Judgment are supported by the evidence.

The judgment is affirmed.