Bushong v. Alderson

143 S.W. 200, 1911 Tex. App. LEXIS 769

• Court: Court of Appeals of Texas
• Decided: December 2, 1911
• Status: Published

Opinion

CONNER, O, J.

Appellants Hattie J. Bushong and her husband, James L. Bush-ong, instituted this suit in.the form of trespass to try title to recover a certain house and lot in the city of Ft. Worth and certain personal property described in the petition which had been leased to the defendants, and all of which was sequestered by the plaintiffs. Upon motion of the defendants Leslie Alderson and wife, A. K. Aider-son, the sequestration proceedings were quashed, said defendants further pleading both actual and exemplary damages for the ouster under the writ. Upon the issue of damages the defendants also declared against the sureties on the plaintiffs’ sequestration bond, in answer to which the plaintiffs by supplemental petition set up actual and exemplary damages because of alleged willful injury and destruction of some of the personal property while possessed by the defendants. All issues so formed were submitted to the jury which returned the following verdict: “We, the jury, find for the defendants, L. W. Alderson and wife, the sum of four hundred dollars for damages sustained, and we, the jury, find that the plaintiffs have the title and possession of the property. F. L. Green, Foreman.” The judgment follows the verdict.

[1, 2] We think appellants’ motion to dismiss the appeal for want of a final judgment must be sustained. Neither the verdict nor the judgment disposes of the sureties on the sequestration bond, and both are silent as to the issues of actual and exemplary damages presented by appellants. Nor can it be said from the verdict or judgment whether the damages awarded appellees are actual or exemplary. The basis of the judgment is the verdict which should have comprehended all of the material issues submitted to the jury. Dodd v. Gaines, 82 Tex. 432, 18 S. W. 618; Michon v. Ayalla, 84 Tex. 696, 19 S. W. 878. And that the verdict should disclose whether damages awarded are actual or exemplary, where both are pleaded, would seem to follow from the rule that no exemplary damages can be allowed where no actual damages have been given. Giraud v. Moore, 88 Tex. 675, 26 S. W. 945; Railway v. Le Gierse, 51 Tex. 189.

[3] It is insisted that appellees’ trial amendment on the issue of damages, having omitted all reference to the sureties on the sequestration bond, operated as an abandonment of their former pleading on the subject, and that such sureties were thereafter no longer parties necessary for disposition by the judgment. The answer to this contention is that the rule invoked does not apply to trial amendments. See Rule 27 (102 Tex. xli, 67 S. W. xxii); Townes’ Texas Pleading, p. 310.

[4] On the ground that' the judgment neither disposes of all of the issues, nor of all of the parties, and that, hence, it is not final, we order that the appeal be dismissed. See Riddle v. Bearden, 36 Tex. Civ. App. 97, 80 S. W. 1061; Williams v. Bell, on rehearing, 53 Tex. Civ. App. 474, 116 S. W. 840, and authorities therein cited.