John R. Jones v. N. T. Avant, 41 Tex. 650

Gould, Associate Justice. There is no statement of facts in this case, and it is admitted by counsel who argued the cause for appellant that the only one of the errors assigned which can with propriety be considered is the' overruling of the motion to dissolve the injunction. That assignment does not bring up the sufficiency of the petition to authorize the final judgment which was rendered perpetuating the injunction which the court had first refused to dissolve.

If it be conceded that it was error to refuse to dissolve the injunction, the action of the court on that motion was in the nature of an interlocutory order, and unless the final judgment perpetuating the injunction is erroneous, does not constitute any sufficient ground for the reversal of the cause. The fourth assignment, that the court erred in rendering judgment enjoining appellant upon the special issues as proved, appears to point out the issues submitted as insufficient, rather than to be aimed at the sufficiency of the case generally to authorize the judgment.

It does not appear, however, that appellant at the trial objected to the issues or submitted other issues to the court. The view which we take of the assignments of error disposes of the objection that Hanna was not made a party, that the case was not one for equitable interposition, and reviews other objections to the petition which have been urged with force.

We have the less hesitation in giving this construction to the assignments of error, and thus disposing of these objections, because counsel who appear to have conducted the case below, and who have also filed a separate brief for appellant, state in that brief that the main object of their appeal is to have the question settled “whether a verbal contract could be made which would bind the growing crops, for anything except rents.” We think the case presented by the record does not require the discussion of that question.

The act of the present Legislature on the subject of landlord and tenant is a sufficient answer as to future cases between parties occupying that relation. We think in the case before us the verdict of the jury establishes that appellee was in actual possession of that part of the crop levied on, under a contract entitling him to such possession, and that his rights were superior to those of appellant, who was simply an execution creditor of Hanna, and who is found by the jury to have had notice of appellee’s rights.

The verdict further shows that the entire crop was insufficient to satisfy appellee’s claim, •and that there was nothing left subject to plaintiff’s execution. We see no error calling for the reversal of the case, and the judgment is accordingly affirmed. Affirmed,