APPLEWHITE v. SILVEY, 236 S.W. 1118 (Tex.Civ.App.-Texarkana 1921)

No. 2460.Court of Civil Appeals of Texas, Texarkana.
November 24, 1921. Rehearing Denied January 26, 1922.

Error from Cherokee County Court; C. F. Gibson, Judge. Suit by D. T. Applewhite against A. D. Silvey, in which defendant sued in reconvention. Judgment for plaintiff for only the amount defendant admitted to be due, and for defendant on his plea in reconvention, and plaintiff brings error. Affirmed.

Harris Harris, of Nacogdoches, and D.C. Cariker and Henry N. Nelson, both of Carthage, for plaintiff in error.

Norman, Shook Gibson, of Rusk, for defendant in error.

HODGES, J.

The plaintiff in error, Applewhite, sued the defendant, A. D. Silvey, in the court below to recover a judgment for rents and advances. Defendant answered by pleading payment of all except a balance of $18.35, which was tendered into court, and which he alleged to have been tendered to plaintiff prior to the suit, and refused by him. Defendant in error also sued in reconvention for damages resulting from the unlawful seizure of two bales of cotton and for injury to his business standing and credit. In a trial before a jury a judgment was rendered in favor of the plaintiff in error for $18.35, the amount tendered into court, and in favor of the defendant in error for $250 as actual damages and $100 as exemplary damages. We are of the opinion that the evidence is sufficient to sustain the finding of the jury, and that the case was properly disposed of, and the judgment is accordingly affirmed.

On Motion for Rehearing.
In response to a motion for a rehearing which was filed after the expiration of the time limit prescribed by the rules, we have again carefully examined the record in this case. The issues presented were issues of fact only. The testimony was in some respects conflicting. No good purpose could be subserved by any extended discussion of those questions of fact. We think the judgment was supported by the evidence, the verdict of the jury, and the findings which the court itself might have made. The motion will therefore be overruled.

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