Opinion
No. 5503.
October 13, 1915.
Appeal from District Court, Bexar County; W. F. Ezell, Judge.
Action by J. W. Yarbrough against the San Antonio, Uvalde Gulf Railway Company and another, with cross-action by defendants. Judgment for plaintiff, and defendants appeal. Affirmed.
Williams Hartman, of San Antonio, for appellants. Don A. Bliss, of San Antonio, for appellee.
Appellee instituted this suit to recover of the railway company and J. E. Franklin the value of certain tools and implements, which constituted a railroad contractor's outfit, which, it was alleged, had been converted to their use by appellants. The property was alleged to be worth the sum of $2,700 and appellee also sought the recovery of $1,000 as exemplary damages. The jury returned a verdict for $600, and judgment was accordingly so rendered.
The first assignment of error assails the verdict on the ground that the value of the property was not shown to be more than $600, and that appellee was indebted to Franklin in a sum equal to that amount. The statement of facts filed in this case is not approved by the trial judge, and consequently cannot be considered by this court. In every instance the statement of facts must be approved by the trial judge. Rivers v. Campbell, 51 Tex. Civ. App. 103, 111 S.W. 190. Without a statement of facts, the assignment of error cannot be considered. The second, fourth, fifth, and eighth assignments are also based on the evidence and must be overruled.
The seventh assignment of error assails the verdict because it did not dispose of the cross-action of appellants. The verdict must be construed in the light of the charge which instructed the jury that they should find for appellee, if they found he was not indebted to appellants, or if the amount in which he was indebted was less than the amount in which appellants were indebted to him. That charge removes all objections to the verdict and makes it certain. The jury must necessarily have found that appellee was not indebted to appellants, or that, if he was, they owed him $600 more than he owed them. Garrett v. Robinson, 93 Tex. 406, 55 S.W. 564; Bemus v. Donigan, 18 Tex. Civ. App. 125, 43 S.W. 1052; Cameron v. Lubbock, 147 S.W. 717.
The judgment does not provide for a double recovery. Although the verdict found a joint liability against appellants, there was no error in the judgment decreeing a joint and several liability. Kuykendall v. Coulter, 7 Tex. Civ. App. 399, 26 S.W. 748; Railway v. Crump, 32 Tex. Civ. App. 222, 74 S.W. 335.
The judgment is affirmed.