Fort Worth Publishing Co. v. Hitson & Reed

ON REHEARING. A very careful consideration of the motion for a rehearing and examination of the record in this case have led us to the determination that while the former opinion may be inaccurate as to some of its statements as to the facts shown by the record, the conclusions therein announced are substantially correct, and that, the disposition of the case heretofore made in this court is proper.

The business of the court does not admit of any discussion at length of the points raised in this motion; nor do we see that such a discussion would serve any useful purpose. We must content ourselves with a few brief remarks upon the several grounds upon which the application for a rehearing is based. We will dispose of them in the order in which they were presented.

First. It is insisted that because T.P. Martin, one of the plaintiffs, failed to introduce any evidence of his writ of attachment the judgment should be reversed. The authority relied upon in support of this contention is Latham v. Selkirk,11 Tex. 314. That was a case of a trial of a right of property in certain chattels levied upon by virtue of an execution, and the point decided was that it was not error to refuse an instruction to the effect that the plaintiff in execution was not entitled to a verdict because be bad failed to introduce in evidence the judgment upon which the writ issued. In the opinion it is said that in cases of that character the plaintiff should introduce in evidence his writ. This dictum we have no disposition to gainsay, but we think the proposition subject to the qualification that before the plaintiff can be required to produce his writ its existence or validity should be put in issue by a special plea interposed for that purpose. Our statute provides that a trial of this character shall be upon issues made up under the direction of the court. Rev. Stats., art. 4833. It is also provided that if the property be taken from the of the claimant the burden shall be upon the plaintiff, but, that if it be taken from the possession of the defendant in the writ the burden of proof shall be upon the claimant. Rev. Stats., arts. 4838, 4839. These provisions indicate that the Legislature contemplated that the trial should be what the name of the proceeding imports — that is to say, a trial of the right of property, and that the validity of the plaintiff's Writ was not to be contested except by a special plea pointing out the grounds relied upon for showing its invalidity. If the plaintiff had to prove his writ in every case in which the defendant pleaded a general denial, logically the burden of proof would be upon hint in every such case. Evidently the purpose of the statute wits to secure it trial of the contest as to the right of property and not of the validity of the writ, and we think it wits intended that the validity of the writ, should not be questioned except by a special plea setting tip the grounds upon which its invalidity is claimed.

The second ground of the motion is based upon the supposed error insisted upon as the first ground; and since we found no error pointed out in the first it follows that the second is untenable.

The third ground insisted upon in the motion is in brief "that the court erred in affirming virtually the judgment upon the main issue in the case, to-wit, the right to the property," etc. The question here submitted calls for a review by this court of all the evidence in the case, and a determination of the controversy upon the merits, and that too without any proper assignment of error in the brief to justify such it consideration. The only assignment of error which questions the sufficiency of the evidence to support the verdict is I he twenty-sixth, and that is manifestly too general to admit of consideration under the rule as applied in repeated decisions of this court.

We think there was no error in admitting the testimony of J.P. Smith, as is insisted on in the Fourth ground of the motion. There was testimony tending to Show that the Texas Investment Company, Limited, was organized for the purpose of acquiring and publishing the newspapers which bad belonged to the Loving Publishing Company. In the meeting at which the Texas Investment Company, Limited, was organized, many of the former stockholders and officers of the publishing company were present. Smith testified that Loving seemed to be acting as owner and manager of the property. What was said and done at that meeting we think were circumstances legitimate to be proved, as tending to show that there was an understanding among all parties that the new company wits to pay the debts of the old investment company, including debts it had contracted for the publishing company, and was to become the owner of the stock of the publishing company, which the old investment company claimed to own.

If it be true, as claimed in appellants' fifth ground of their motion, that the court in its opinion "misapprehended the record and wits led into error in assuming that the stock of the publishing company was assets of the investment company," this shows no sufficient reason for granting it rehearing. It is only errors Which may have been committed by the trial court and which have been assigned in appellants' brief which concern us in disposing of this motion. We think, however, it may be said that the evidence leaves very little doubt that the entire stock of the publishing company belonged to the investment company.

It is true, as claimed by appellants in the sixth ground of their motion, that the court assumed in its charge that the Texas Investment Company, Limited, was the owner of the stock of the publishing company, and that this assumption was not warranted by the evidence. There was some conflict, or at least uncertainty, as to the point. But the fact was assumed as introductory to an instruction to the effect that although this was a fact yet the plaintiffs were not entitled to recover unless it had been proved that the property in controversy had also been transferred by the publishing Company to the investment company. The assumption only made the instruction more prominent and pronounced, and the instruction itself being favorable to appellants we do not see that they were prejudiced by the error.

The last ground of the motion is "that the verdict of the jury is manifestly against the preponderance of the evidence as to the title to the property." As has already been said, the only assignment of error which calls in question the sufficiency of the evidence to support the verdict is too general to be considered.

The motion for a rehearing is overruled.

Motion refused.

Delivered March 13, 1891.

Mr. Justice Henry not sitting.