Summary
In Railway v. Ivy, 79 Tex. 447; Railway v. Fennell, 79 Tex. 449 [ 79 Tex. 449], and Railway v. Turner, 1 Texas Civil Appeals, 631, it is held, that the signing of statements by the carrier such as are exacted by this provision of the contract would simply be an admission of the party that signed it, which could be rebutted and explained, and that the statements contained in such reports would not estop the maker from denying their truth.
Summary of this case from M.K. T. Ry. Co. v. CarterOpinion
Decided June 24, 1904.
Appeal from Justice to County Court — Appeal Bond — Parties.
Where judgment is rendered in justice court against one of two defendants having no adverse interest, appeal may be taken to the county court without making the codefendant a party to the appeal bond.
Appeal from the County Court of Leon. Tried below before Hon. J. W. Powell.
Baker, Botts, Parker Garwood, for appellant.
William Watson and John A. Newsom, for appellee.
Appellee brought this suit in the Justice Court against the appellant and the International Great Northern Railroad Company to recover the sum of $175 as damages alleged to have been caused by the failure of defendants to promptly carry and deliver a carload of hogs shipped by appellee from the town of Oakwoods, Texas, to the city of Fort Worth.
Plaintiff alleged "that the International Great Northern Railroad Company, by its contract, bound itself to transport said car of hogs from Oakwoods, Texas, to Fort Worth, Texas, and that its connecting carrier and agent, Houston Texas Central Railway Company, after receiving said car of hogs, failed to transport them with reasonable diligence, and by delaying them in shipment caused plaintiff to lose the sum of $175 by reason of its negligence in transporting said car of hogs."
International company filed exceptions to plaintiff's petition which were sustained by the justice and plaintiff's suit against that company dismissed. The cause then proceeded to a trial by a jury which resulted in a verdict and judgment in favor of plaintiff against the Houston Texas Central Railway Company for the damages claimed.
In due time this defendant appealed from this judgment to the County Court of Leon County and filed an appeal bond in the Justice Court which was approved by the justice, and the transcript and papers were sent up to the County Court. The plaintiff filed a motion in the County Court to dismiss the appeal on the grounds that the appeal bond was not made payable to the International Great Northern Railroad Company as well as to the plaintiff. This motion was sustained by the county judge and the appeal dismissed. From this judgment of dismissal the defendant has appealed to this court.
The court below erred in holding that the appeal bond was insufficient. The record discloses no interest in the International company adverse to setting aside the judgment against appellant, and therefore appellant was not required to make that company a payee in the appeal bond. Slayton v. Horsey, 9 Texas Ct. Rep., 312; Cross v Moore, 55 S.W. Rep., 373; Martin v. Lapowski, 11 Texas Civ. App. 690[ 11 Tex. Civ. App. 690], 33 S.W. Rep., 300.
The judgment of the court below is reversed and the cause remanded for trial.
Reversed and remanded.