Phillips v. Parr , 19 Tex. 91 ( 1857 )

Hemphill, Ch. J.

The petition for certiorari was dismissed on motion, and the plaintiff Phillips has sued out his writ of error. From the allegations it appears that Parr brought suit before the Justice against Phillips, for the value of certain hogs killed by one Mullins under the authority and by direction of Phillips ; that the plaintiff Phillips had sold some hogs to Parr, but those killed by Mullins were not included in the sale ; that Mullins proved upon the trial, that the hogs killed by Mm were the property of Phillips and not of Parr ; and that before killing he had informed Parr of the hogs he was about to kill, and that Parr said it was all right except two pigs, and that he killed no other hogs than those mentioned to Parr. Petitioner admits that it was proven he had sold some hogs to Parr, but denies that he sold the hogs sued for. He charges that the Justice entirely disregarded the evidence in the cause, and gave judgment against the petitioner.

There is no distinct allegation that the averments contain, in substance, a statement of all the facts in evidence before the Justice, and especially with reference to the right of property in the hogs. But this seems to have been the intention of the plaintiff. The effect of the allegations is, that Mullins proves positively that the property in these specific hogs was in Phillips, and that the other evidence was to the effect that Phillips had sold some hogs to Parr, but did not identify'those sued for as being a part of those that were sold ; and if so, there was clearly injustice in the judgment, and the complainant was entitled to a trial de novo in the District Court. It is ordered that the judgment be reversed and cause remanded.

Reversed and remanded.