Gameson v. Gameson , 1914 Tex. App. LEXIS 1307 ( 1914 )

JENKINS, J.

On a former day of the present term of this court we reversed and remanded this cause for error in the charge of the court on the burden of proof as to whether two notes executed by appellant for $100 each were paid out of the separate property of appellant or the community property of appellant and appellee; the jury having found under said charge in favor of appellee, that is to say, that the payment was made with community funds. Subsequently appel-lee filed in this court a remittitur of said amount. We reformed the judgment so that appellee should take nothing as to said notes, and, as thus reformed, we affirmed the judgment of the trial court.

Appellant has filed a motion requesting us to specifically pass on his assignments from 13 to 21, inclusive. We grant said request, and overrule each and all of said assignments.

[1] The thirteenth assignment is to the effect that the evidence does not support the finding of the jury that the 51% acres consisting of three small tracts adjoining the 50-acre tract was purchased after marriage. The only deed that appellant had to this tract was executed, as stated in our findings of fact, 4 years 6 months and 26 days after marriage. Appellant testified that he bought this land from McMillan at the same time that McMillan deeded to him the 50-acre tract, about a year before his marriage. 1-Ie said: That McMillan “had a contract with Goodrich for the 51% acres. It was in writing.” That the same has been lost. Five and a half years after this appellant bought this land from Hanrick and Goodrich; whether by purchase at that time or in fulfillment of the Goodrich contract does not appear. Appellant does not claim that he got a deed from McMillan to this 51% acres. Why he should not have obtained a deed from McMillan to this land, as well as to the 50 acres, is not accounted for. The date of the deed made a prima facie case in favor of appellee. The appellant’s evidence as to his having purchased McMillan’s “claim” possibly required the issue to be submitted to the jury, and it was submitted. We cannot say, as a matter of law, that the verdict was not supported by the evidence.

[2] The fourteenth, fifteenth, sixteenth, seventeenth, eighteenth, and nineteenth assignments all relate to the sufficiency of the evidence to sustain the findings of the jury. The twentieth assignment is that the answers of the jury show that they were prejudiced against appellant, and therefore he did not have a fair trial. The proposition under this assignment that the court erred in sending the jury back for a fuller answer is not germane to the assignment.

[3] The twenty-first assignment embodies two points of law, and no proposition is submitted under it. For this reason, we might have refused to consider it; but we have duly considered it, and find it without merit.