Plaintiffs sued defendant in a state court in Texas to recover
$5,970, the alleged value of goods destroyed by a fire charged to
have been caused by defendant's negligence. Defendant pleaded and
excepted to the petition. The cause was then removed to the circuit
court of the United States on defendant's motion, who there
answered further, pleading the general issue, excepting to the
petition, among other things, for insufficiency and vagueness in
the description of the goods and charging contributory negligence
on plaintiffs' part. Plaintiffs filed an amended petition more
precise in statement and reducing the damage claimed to $4,656.71.
To this defendant answered, again charging contributory negligence
and setting up, "by way of set-off, counterclaim, and
reconvention," injuries to himself to the extent of $8,000,
resulting from plaintiffs' negligence, for which he asked judgment.
Plaintiffs excepted to the cross-demand. On the 6th October, 1888,
the cause coming to trial, defendant's exceptions were overruled
except the one for vagueness, and as to that plaintiff's were
allowed to amend; plaintiffs' exceptions to the counterclaim were
sustained, and the jury rendered a verdict for $4,300 principal and
$792.15 interest. It appeared by the record that plaintiffs on the
wane day remitted $435.50, and judgment was entered for $4,656.65,
but it further appeared that on the 8th October, plaintiffs moved
for leave to remit that amount of the judgment and leave was
granted the remittitur to be as of the day of the rendition of the
judgment, and the judgment
Page 132 U. S. 532
to be for $4,656.65 and costs. On the same 8th of October,
defendant filed a bill of exceptions in the cause "signed and filed
herein and made a part of the record in this cause this 8th day of
October, 1888." On the 9th October, a motion for a new trial was
overruled. On a motion to dismiss the writ of error or to affirm
the judgment,
Held:
(1) That the remittitur was properly made, and that it was
within the power of the circuit court to order it as it was
ordered.
(2) That if no other question were raised in the case, the
motion to dismiss would be granted.
(3) That the counterclaim, being founded on a "cause of action
arising out of, or incident to, or connected with the plaintiffs'
cause of action," was properly set up, and conferred upon this
Court jurisdiction to examine further into the case.
(4) That the plaintiffs' exception to the counterclaim was
properly sustained.
(5) That if the counterclaim could be maintained, a recovery
could be had only for damages which were the natural and proximate
consequences of the act complained of.
(6) That the defendant's exceptions to the charge of the court,
having been taken two days after the return of the verdict, were
taken too late.
(7) That the facts furnished ground for maintaining that the
counterclaim was set up only for the purpose of giving jurisdiction
to this Court.
(8) But whether that were so or not, the judgment ought to be
affirmed on the case made.
Motions to dismiss or affirm. The case is stated in the
opinion.
MR. CHIEF JUSTICE FULLER delivered the opinion of the Court.
This action was commenced by Sam Malin and George Colvin,
partners doing business under the firm name and style of Malin
& Colvin, in the District Court of Mitchell County, Texas, to
recover of the defendant the sum of $5,970, the alleged value of
certain goods and chattels destroyed by a fire occasioned, as
averred, by the negligence of the defendant. The defendant filed
various pleas and exceptions to the plaintiffs' petition, including
the general
Page 132 U. S. 533
issue. The cause was then removed from the state court to the
United States Circuit Court for the Western District of Texas, and
the defendant filed an amended original answer, and, as special
exceptions, stated various grounds upon which it alleged the
plaintiffs' original petition was insufficient, and, among other
things, that all the items of the property charged to have been
destroyed were not sufficiently described, and again pleaded the
general issue, and also set up, with particularity, contributory
negligence on the part of the plaintiffs.
Plaintiffs thereupon filed an amended petition recapitulating
with greater precision the items of the property alleged to have
been consumed, which reduced the aggregate of the claim from $5,970
to $4,656.71, and prayed judgment for the latter amount, and costs,
"and for all such other and further relief as the said plaintiffs
may be entitled to in the premises in law or equity."
To this amended petition the defendant interposed on the 5th day
of October, 1888, a second amended original answer and exceptions,
reiterating the exceptions formerly taken, and, further answering
"by way of counterclaim and reconvention," charged that the
plaintiffs were themselves guilty of negligence in keeping a
dangerous lamp in a careless manner, by reason of which the fire
was occasioned, and that thereupon the plaintiffs, "without
probable or adequate cause," instituted this suit, and divers other
parties have instituted and maintain suit, against the defendant,
by reason whereof the defendant has been compelled to pay out a
large sum of money, to-wit, $3,000, for attorneys' fees and
expenses in defending this and said other suits, and further, that
by reason of said fire and the institution of said suits, the
reputation of the defendant had become
"damaged and bad, and defendant has thereby lost custom and
business upon which it would have realized a net revenue of,
to-wit, five thousand dollars. Wherefore defendant says that it has
been damaged by reason of the premises in the sum of eight thousand
dollars actual damages, and defendant pleads said damages herein by
way of set-off, counterclaim, and reconvention, and asks for
judgment,"
etc.
Page 132 U. S. 534
On the same day, October 5th, plaintiffs filed an exception to
the cross-demand. The case came on for trial on the 6th day of
October, when the defendant's exceptions to the plaintiffs'
petition were overruled, except the fourth special exception
objecting that the bill of particulars was too vague, in respect to
which the plaintiffs were allowed to amend at once, so as to meet
such exception. The plaintiffs' exception to defendant's plea in
reconvention and counterclaim was also sustained by the court, and
the defendant excepted. A jury was called, and trial had, resulting
in the return of a verdict on said 6th of October in favor of the
plaintiffs for the sum of $4,300, "with interest from the 17th day
of June, A.D. 1886," and judgment was thereupon rendered for the
sum of $4,300, and the further sum of $792.15, interest since the
17th day of June, 1886, making in all the sum of $5,092.15, with
costs, and the judgment record then proceeds thus:
"And then came the plaintiffs and remit of and from the
foregoing judgment the sum of four hundred and thirty-five dollars
and fifty cents, leaving said judgment, as above, rendered, to
stand for the sum of four thousand six hundred and fifty-six
dollars and sixty-five cents in favor of the said plaintiffs, and
against the said defendant; for which execution may issue."
The charge of the court at length was filed the same day.
On the 8th day of October, 1888, a paper entitled "Defendant's
Bill of Exceptions to the Charge of the Court" was filed, which
commenced:
"Now comes the defendant and excepts to the charge of the court
to the jury, wherein and whereby the jury are instructed to find
for plaintiffs, if at all, the value of the goods and property,
together with eight percent interest thereon from the time and date
of such said destruction,"
and, after stating the reasons for objection to that part of the
charge, thus concludes:
"And for said reasons, defendant objects and excepts to that
portion of the charge of the court, and tenders herewith its bill
of exceptions thereto and thereof, and asks that the same be signed
and filed herein, and made a part of the record in this cause, this
8th day of October, 1888."
And also a other paper, entitled "Bill of Exceptions
Tendered
Page 132 U. S. 535
by the Defendant," commencing:
"Now comes the defendant in said above cause and excepts to that
portion of the charge of the court to the jury relative and
appertaining to defendant's interposition and allegation of
contributory negligence,"
etc., stating the words excepted to, and concluding thus:
"And defendant tenders this its bill of exceptions to such said
charge so given by the court to the jury, and asks that same be
signed and filed herein, and made a part of the record in this said
cause, this 8th day of October, 1888."
Both these papers were signed by the judge presiding.
There appears on the same 8th of October a motion by the
plaintiffs for leave to enter a remittitur for the sum of $435.50,
and an order of court allowing said remittitur as of the 6th day of
October, 1888, and stating that the plaintiffs had on that day
voluntarily remitted said amount of and from said judgment, but, it
not appearing to have been done in open court, or with leave of the
court, the plaintiffs are now permitted, as of the 6th of October,
to remit the amount in question, and it is ordered that the
judgment of the 6th day of October, 1888, be corrected and reformed
so that upon the verdict and the remittitur the plaintiffs recover
of the defendant the sum of $4,656.65, and costs, "and that this
judgment take effect and be of force of and from the 6th day of
October, 1888."
On the 9th of October, 1888, a motion for a new trial was
overruled by the court, and the defendant excepted. To review the
judgment the defendant sued out, November 23, 1888, a writ of error
from this Court, and a motion is now made to dismiss the writ,
because the matter in dispute is less than $5,000, with which is
united a motion to affirm,
"on the ground that, even if this Court has jurisdiction, it is
apparent that the questions involved are so frivolous as not to
need further argument, and that the writ of error is sued out for
delay only."
Articles 1351, 1352, 1354, 1355, and 1357 of the Revised
Statutes of Texas are as follows:
"Art. 1351. Any party in whose favor a verdict has been
Page 132 U. S. 536
rendered may in open court remit any part of such verdict, and
such remitter shall be noted on the docket, and entered in the
minutes, and execution shall thereafter issue for the balance only
of such judgment, after deducting the amount remitted."
"Art. 1352. Any person in whose favor a judgment has been
rendered may in open court remit any part of such judgment, and
such remitter shall be noted on the docket, and entered in the
minutes, and execution shall thereafter issue for the balance only
of such judgment, after deducting the amount remitted."
"Art. 1354. Where there shall be a mistake in the record of any
judgment or decree, the judge may, in open court, and after notice
of the application therefor has been given to the parties
interested in such judgment or decree, amend the same according to
the truth and justice of the case, and thereafter the execution
shall conform to the judgment as amended."
"Art. 1355. Where, in the record of any judgment or decree of
any court, there shall be any mistake, miscalculation, or
misrecital of any sum or sums of money, or of any name or names,
and there shall be among the records of the cause any verdict or
instrument of writing, whereby such judgment or decree may be
safely amended, it shall be the duty of the court in which such
judgment or decree shall be rendered, and the judge thereof, in
vacation, on application of either party, to amend such judgment or
decree thereby, according to the truth and justice of the case; but
the opposite party shall have reasonable notice of the application
for such amendment."
"Art. 1357. A remitter or correction made as provided in any of
the six preceding articles shall, from the making thereof, cure any
error in the verdict or judgment by reason of such excess."
1 Sayles, Texas Civil Statutes 450, 451.
The record of the 6th of October states the remittitur in proper
form, and the judgment for $4,656.65 thereupon, but if we are to
understand that the remittitur of that date was believed to be
ineffective because it did not appear to have been made in open
court or with leave of court, it was entirely within the power of
the circuit court, on the 8th of October,
Page 132 U. S. 537
at the same term, and before any writ of error had been sued
out, to correct the record according to the fact. As the judgment,
as it stands, is for less than $5,000, if there were nothing else
in the case, we should grant the motion to dismiss.
Pacific
Postal Tel. Cable Co. v. O'Connor, 128 U.
S. 394.
But it is contended that the plea or answer by way of
reconvention or counterclaim affords sufficient ground for
jurisdiction, and that the questions arising thereon cannot be
disposed of on a motion to affirm. "Reconvention," as the term is
used in practice in Texas, means a cross-demand, and the title of
"Counter-Claim" in the Revised Statutes of that state is referred
to by counsel as descriptive of such cross action, which is more
extensive than set-off, or recoupment.
Under this title, article 645 of the Revised Statutes of Texas
provides:
"Whenever any suit shall be brought for the recovery of any debt
due by judgment, bond, bill, or otherwise, the defendant shall be
permitted to plead therein any counterclaim which he may have
against the plaintiff subject to such limitations as may be
prescribed by law."
By article 649, if plaintiff's cause of action be a claim for
unliquidated or uncertain damages founded on a tort or breach of
covenant, the defendant is not permitted to set off any debt due
him by the plaintiff, and if the suit be founded on a certain
demand, the defendant is not permitted to set off unliquidated or
uncertain damages founded on a tort or breach of covenant on the
plaintiff's part.
Section 650 is in these words:
"Nothing in the preceding article shall be so construed as to
prohibit the defendant from pleading in set-off any counterclaim
founded on a cause of action arising out of, or incident to, or
connected with the plaintiff's cause of action."
1 Sayles' Texas Civil Statutes 236, 237.
The present alleged counterclaim is founded on the converse of
the same cause of action as that counted on by the plaintiffs, and
inasmuch as the verdict and judgment determined that the defendant
had been guilty of negligence, and that the
Page 132 U. S. 538
plaintiffs had not, it may be assumed that the defendant
suffered no injury through the action of the court in sustaining
the exception to it. Had the verdict been otherwise, the defendant
might perhaps have complained that it had not been allowed to
recover such damages on its cross-demand as could have been
properly thereby claimed. A denial of the right of recovery over
did not cut the defendant off from establishing plaintiffs'
negligence if it could. As that question was settled in plaintiffs'
favor, the particular ruling became immaterial, but it may be added
that the exception was properly sustained, because the recovery by
the defendant, if successful on such a cross action, would have
been confined to the natural and proximate consequences of the act
complained of, and would not have included such damages as are
referred to in its pleading, and as therein claimed.
Plumb v.
Woodmansee, 34 Ia. 116, approved in
Pinson v. Kirsh,
46 Tex. 26.
It may be further remarked that the alleged bills of exceptions
do not show that the exceptions were taken on the trial. While
exceptions may be reduced to form and signed after the trial, they
must appear affirmatively to have been taken before the jury
withdrew from the bar.
United States v. Carey,
110 U. S. 51, and
cases cited.
Here it is expressly stated that the exceptions were taken on
the 8th day of October, two days after the return of the verdict.
This was too late, and, as to the motion for a new trial, the
action of the circuit court thereon was in the exercise of its
discretion, and cannot be reviewed here.
As the cross-demand was not set up until after the plaintiffs
had been compelled by the defendant to make their items of loss
more specific, and had thus reduced the amount claimed below the
jurisdiction of this Court, there is color for the contention on
the part of the defendants in error that it was put forward for the
purpose of giving this Court jurisdiction. But, assuming this not
to have been so and that the writ of error should not be dismissed,
we are of opinion that
The motion to affirm must be sustained, under the
circumstances, and it is so ordered.