Gillett v. Holligan

Court of Appeals of Texas

Gillett v. Holligan

162 S.W. 367, 1913 Tex. App. LEXIS 125

CourtCourt of Appeals of Texas

DecidedDecember 20, 1913

StatusPublished

Cited by1 cases

This text of 162 S.W. 367 (Gillett v. Holligan) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Gillett v. Holligan, 162 S.W. 367, 1913 Tex. App. LEXIS 125 (Tex. Ct. App. 1913).

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Opinion

ELY, C. J.

Appellee instituted this suit against appellant to foreclose a lien on the latter’s land; said lien arising from appellee having, at the instance and request of appellant, dug a well on said land, for which appellant failed and refused to pay. The cause was tried by jury and resulted in a verdict and judgment in favor of appellee.

Assignments of error from 1 to 6, inclusive, complain of the refusal of the court 'to sustain certain exceptions to the petition. The record fails to disclose that any action was taken by the court on the exceptions. In such case it will be presumed that the exceptions were waived by appellant and were not called to the attention of the court. Mims v. Mitchell, 1 Tex. 443; Jones v. Black, 1 Tex. 527; Elliot v. Mitchell, 28 Tex. 105.

*368 The seventh assignment is not followed by a sufficient statement and will not be considered. References to the transcript of the evidence cannot supply the place of a statement. Gibson v. Oppenheimer, 154 S. W. 694.

The tenth assignment of error complains of an omission in the charge of the court. In the absence of a reguested charge to supply the omission, it will not cause a reversal. Railway v. O’Donnell, 58 Tex. 27; Queen Ins. Co. v. Jefferson Ice Co., 64 Tex. 578; Railway v. Leah, 64 Tex. 654; Harrell v. Houston, 66 Tex. 278, 17 S. W. 731.

Appellant admitted that appellee dug a well for him on his land and that he was indebted in some sum for the well. He did not deny the existence of the facts which created the statutory lien but sought to offset a claim against the amount due for the well. The jury found the existence of the debt and necessarily thereby found the existence of the lien. The lien was proved, and, as held by this court in Richardson v. Herbert, 135 S. W. 628, “when the jury found that a debt existed, t¿hey necessarily found that the lien existed, and it was the duty of the court to foreclose the lien.”

The jury found that a debt was due for the well dug on appellant’s land; the law gave the lien; and it was the duty of the court to declare it.

The judgtaent is affirmed.

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ELY, C. J.

Appellee instituted this suit against appellant to foreclose a lien on the latter’s land; said lien arising from appellee having, at the instance and request of appellant, dug a well on said land, for which appellant failed and refused to pay. The cause was tried by jury and resulted in a verdict and judgment in favor of appellee.

Assignments of error from 1 to 6, inclusive, complain of the refusal of the court 'to sustain certain exceptions to the petition. The record fails to disclose that any action was taken by the court on the exceptions. In such case it will be presumed that the exceptions were waived by appellant and were not called to the attention of the court. Mims v. Mitchell, 1 Tex. 443; Jones v. Black, 1 Tex. 527; Elliot v. Mitchell, 28 Tex. 105.

*368 The seventh assignment is not followed by a sufficient statement and will not be considered. References to the transcript of the evidence cannot supply the place of a statement. Gibson v. Oppenheimer, 154 S. W. 694.

The tenth assignment of error complains of an omission in the charge of the court. In the absence of a reguested charge to supply the omission, it will not cause a reversal. Railway v. O’Donnell, 58 Tex. 27; Queen Ins. Co. v. Jefferson Ice Co., 64 Tex. 578; Railway v. Leah, 64 Tex. 654; Harrell v. Houston, 66 Tex. 278, 17 S. W. 731.

Appellant admitted that appellee dug a well for him on his land and that he was indebted in some sum for the well. He did not deny the existence of the facts which created the statutory lien but sought to offset a claim against the amount due for the well. The jury found the existence of the debt and necessarily thereby found the existence of the lien. The lien was proved, and, as held by this court in Richardson v. Herbert, 135 S. W. 628, “when the jury found that a debt existed, t¿hey necessarily found that the lien existed, and it was the duty of the court to foreclose the lien.”

The jury found that a debt was due for the well dug on appellant’s land; the law gave the lien; and it was the duty of the court to declare it.

The judgtaent is affirmed.

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