G., H. & S. A. R'y Co. v. Denenbaum

Opinion by

Will-son, J.

§75. Practice on appeal; exceptions not presented or acted upon in trial court will not be considered. Appellees brought this suit against appellant and Isaac Heidenheimer to recover $900 damages for the conversion of a car-load of flour, and recovered judgment for said sum against both defendants. Heidenheimer has not appealed. It does not appear from the record that appellant’s exceptions to appellees’ petition were presented or acted upon in the trial court. They are therefore not entitled to consideration in this court. [1 Civil Cas. Ct. App., § 489; 3 Civil Cas. Ct. App., § 9.] The allegations of the petition are substantially sufficient. There is no statement of facts in the record, and it is not shown that appellant was deprived, without negligence or fault on his part, of the benefit of such statement. It is conceded by appellees that the judgment for $900 is excessive and erroneous to the amount of $200, and a remittitur for such excess has been made in this court. The judgment of the court below is therefore reversed, and judgment is here rendered for appellees against appellant and Isaac Heidenheimer for the sum of $700, with legal interest thereon from March 6, 1888, and all costs, except the costs of this appeal, which are adjudged against appellees.

April 19, 1890.

Eeversed and rendered.