
    WENGENROTH et ux. v. AGOLD.
    No. 8368.
    Court of Civil Appeals of Texas. San Antonio.
    Feb. 26, 1930.
    Rehearing Granted March 19, 1930.
    On the Merits April 2, 1930.
    Rehearing Overruled April 30, 1930.
    W. O. Linden, of San Antonio, for appellants.
    Maurice Lehmann, of Boerne, for appel-lee.
   FLY, C. J.

This suit originated in the justice’s court of Kendall county, and is a suit for damages by appellee, alleged to have resulted from the death of eleven sheep and injury of four other’s, by two dogs belonging to appellants; said damages being alleged to amount to' $195.

As stated, this cause originated in the justice’s court, but there is nothing in the record to indicate how it got .into the county court. There is no transcript from the justice’s court contained in the record, nothing •to indicate that a judgment was rendered in the justice’s court, no appeal bond from that court to the county court. Under such circumstances there is nothing to indicate that the county court had jurisdiction, and consequently this court has none. Merrick v. Rogers (Tex. Civ. App.) 46 S. W. 370; Railway v. Jordan (Tex. Civ. App.) 83 S. W. 1105; Ins. Co. v. Pounders (Tex. Civ. App.) 84 S. W. 666; Albritton v. Bank (Tex. Civ. App.) 85 S. W. 1008.

The appeal is dismissed.

On the Merits.

In a former opinion in this case the appeal was properly dismissed because the record failed to show any transcript of the proceedings and appeal bond from the justice’s court in which the case originated. After-wards; for reasons deemed sufficient, appellants were permitted to obtain an addition to the record showing that the justice’s transcript and appeal bond bad been inadvertently omitted from tbe record. Tbe record as completed shows That appellee, as plaintiff in tbe justice’s court, recovered of appellants tbe sum of $100. On appeal to tbe county court a verdict and judgment was rendered against appellants for $125. Tbe judgment is based on a claim for damages accruing by tbe acts of dogs of appellants entering tbe premises of appellee and killing eleven sbeep and badly injuring four others.

Tbe evidence shows that appellee found two dogs in bis inclosure near tbe recently killed and wounded sbeep. There were eleven dead sbeep and four badly wounded. He shot and killed the two dogs. Caroline Wen-genroth, tbe wife, at first claimed tbe dogs and reproached appellee for killing them, but afterwards disclaimed ownership of them. Tbe testimony clearly showed that tbe dogs belonged to appellants and that they killed tbe sbeep.

Tbe petition filed in tbe county court did not allege that the dogs that killed tbe sbeep were vicious and that this fact was known to appellants. This was a defect in tbe pleadings usually, unless tbe same were cured by tbe answer. It is the- rule that an omission in the pleading of one party may be cured by allegations on tbe part of tbe other, and on demurrer to tbe petition the averments in tbe answer may be considered in order to cure tbe defects in tbe petition. Lyon v. Logan, 68 Tex. 521, 5 S. W. 72, 2 Am. St. Rep. 511; Wright v. McCampbell, 75 Tex. 644, 13 S. W. 293; Railway v. Anderson, 76 Tex. 244, 13 S. W. 196. In this.case appellants alleged in their answer; “That tbe two dogs owned by them were around and through tbe flocks of sbeep owned" by their nearest neighbors frequently and never killed or harmed any of said sbeep or goats, and if they or either of them ever killed or harmed any goats or sbeep that fact was wholly unknown to them and bad they known such facts, or bad notice of any such fact they would have disposed of said dogs or restrained them.” Those allegations cured tbe defective averments in tbe petition. Boettler v. Tendick, 73 Tex. 488, 11 S. W. 497, 5 L. R. A. 270; Gaston v. Wright, 83 Tex. 282, 18 S. W. 576; Railway v. Miller, 60 Tex. Civ. App. 627, 128 S. W. 1165. There was no necessity for filing written pleadings in tbe county court, and if defective pleadings were filed it will be presumed that they were made good by oral pleadings. Railway v. Pool, 24 Tex. Civ. App. 575, 59 S. W. 511; Ethridge v. Railway (Tex. Civ. App.) 39 S. W. 204; Vick v. Land Co. (Tex. Civ. App.) 24 S.W.(2d) 735.

Tbe second proposition relates to certain testimony of a certain witness described as “one Noah” as to a conversation be had with tbe son of Mrs. Wengenroth as to tying up tbe dogs because they ran deer and rabbits. Tbe bill of exceptions fails to show that tbe judge ruled on tbe objections of appellants to tbe testimony, but if it bad been full and explicit in every particular, appellants cannot take advantage of it because Poster Cravy, tbe son of Mrs. Wengenroth, testified to identically tbe same facts without objection. He swore: “Yes, Tom Noah talked to me about tying up tbe young dog; said our dogs were running deer all tbe time and were running them all out of tbe country, and if tbe young dog was tied up tbe old one would quit, and that if I didn’t do it somebody would kill tbe youngj dog. I told him I didn’t care ii they did.” Tbe proposition is overruled.

There was no testimony offered or given tending to show that tbe owners of the dogs bad any knowledge of tbe sheep-killing propensities of tbe dogs, but, on tbe other band, tbe testimony showed that tbe dogs bad been seen often near and among sbeep and bad never chased or attempted to kill them. Tbe testimony showed beyond reasonable doubt that the dogs did kill tbe sbeep of appellee, but indicates that it was their first offense. If it was their first murderous attack-on sheep, they showed a bloodthirstyness that could not be surpassed by old offenders. Under the common, law it was required that in order to render tbe owners of vicious animals liable in damages for their destruction of the property of others, they must have bad actual or constructive knowledge of such facts as would put persons of ordinary prudence on notice that if tbe animals were allowed to run at large they would depredate upon tbe property or invade tbe rights of others. Pettus v. Weyel (Tex. Civ. App.) 225 S. W. 191; Villareal v. Alexander (Tex. Civ. App.) 13 S. W. (2d) 712. The first decision was written by Judge Anton Moursund, then a member of this court, and a writ of error was refused by tbe Supreme Court. Tbe decision in,tbe second case was written by tbe Court of Civil Appeals of tbe El Paso District, and closely followed tbe opinion of this court.

Tbe evidence does not sustain tbe verdict, and tbe judgment is reversed, and the cause remanded.  