
    OIL WELL SUPPLY CO. et al. v. MARCHMAN.
    (No. 3332.)
    Court of Civil Appeals of Texas. Texarkana.
    Jan. 13, 1927.
    1. New trial <&wkey;44(3), 73 — Granting new trial because plaintiffs argued, and jury considered, matters not pleaded nor in evidence, and jury answered issues to effect certain result, not on merits, held not error (Rev. St. 1925, arts. 7402-7425).
    In suit under Rev. St. 1925, arts. 7402-7425, between creditors to determine which was entitled to certain of debtor’s property, the granting of a new trial for improper argument of plaintiffs’ counsel and misconduct of jury held not error, where plaintiffs’ counsel argued that plaintiffs’ debts were incurred for the purchase price of the property in controversy and for board and lodging, and that defendant’s debt was incurred for rent of drilling outfit, which was benefited by the use made of it, and jury considered nature of debts due plaintiffs, and there was no pleading or evidence of the nature of the debts due plaintiffs, nor that drilling outfit was benefited by use made of it, and jury tried to answer special issues so as to give defendant but part of his claim, and not on merits.
    2. Appeal and error <&wkey;854(6) — Order granting new trial will not be reversed, If motion for new trial should have been granted on any grounds specified.
    If motion for new trial should have been granted on any ground specified in the motion, order granting it will not be reversed by Court of Civil Appeals, regardless- of whether the motion should have been granted on the grounds specified by the trial court.
    3. Appeal and error <&wkey;933(4) — Granting motion for new trial on, one ground gave rise to no presumption that other grounds were overruled.
    That new trial was granted on ground of improper argument and improper conduct of jury gave rise to no presumption that other grounds of motion for new trial were considered and overruled.
    4. Appeal and error <&wkey;90( — On appeal from order granting new trial, appellant has burden of showing that order was error.
    Appellant has burden of showing that order granting new trial was reversible error when he appeals therefrom the same as he must in other cases.
    Appeal from District Court, Smith County; J. R. Warren, Judge.'
    Suit by Oil Well Supply Company and another against R. G. Marchman, under Rev. St. 1925, art. 7402-7425. Judgment was rendered for plaintiffs. From an order granting a new trial, plaintiffs appeal.
    Affirmed.
    The appeal is from an order granting ap-pellee, Marchman, a new trial in a statutory (articles 7402-7425, R. S. 1925) trial of right of property suit, in which judgment was rendered against him in favor of the appellant Oil Well Supply Company and the appellant J. B. Peabody for $3,500, the value of certain iron piping levied upon by virtue of writs of attachment issued at appellants’ instance in suits by them against one W. F. Weeks, who owned the property, and who, appellants claimed, was indebted to them. Appellee was the “claimant” in the court below. His contention was that Weeks was indebted to him also, and had turned the piping over to him to hold as security for the payment of such indebtedness. Grounds (among others) of the motion for a new trial were that the findings of the jury on which the judgment was based were not supported by the testimony; that the jury was guilty of misconduct in ways specified; and that specified argument of counsel for appellants to the jury was improper and prejudicial to rights of appellee. It appears from recitals ip the order disposing of the motion for a new trial that it was granted “on grounds (quoting) of misconduct of the jury and improper argument of counsel” as set forth in the motion.
    It appears in the record that the judgment set aside was based on findings (not important to state) the court made and answers the jury made to special issues as follows submitted to them:
    “(1) Did W. F. Weeks, before leaving Smith county, authorize R. G. Marchman to take possession of and hold the property in question as security for the debt Weeks owed Marchman? Answer: No. i
    “(2) Did R. G. Marchman, acting upon authority given him by Weeks (if you find he was given such authority) either in person or by agent, take possession of the property in question? Answer: No.
    “(3) What amount does W. F. Weeks owe R. G. Marchman? Answer: $1,750.”
    The conduct charged against the jury, which testimony at the hearing on the motion tended to establish, was: (1) That they discussed and considered as facts that' the claim of the Oil Well Supply Company was for the purchase price of the property in controversy, sold by it to Weeks, and that the claim of Peabody was for board and lodging he had furnished Weeks, whereas there was no testimony showing what said claims, respectively, were for; and (2) that the jury thought the indebtedness of Weeks to Marchman was $1,750 instead of $3,000 as claimed by the latter, and that the $1,750 should be paid out of the proceeds of a sale of the property in controversy, worth $3,500, and that the remainder of such proceeds should be applied on indebtedness of Weeks to appellants, and discussed and considered how said questions, 1 and 2 should be - answered in order to have said proceeds, so applied, concluding same would be applied that way if they answered said questions in the negative, and that, if they answered same in the affirmative, the full amount of $3,000 claimed by Marchman would be paid out of said proceeds.
    The argument of counsel complained of in the motion was that questions 1 and 2 should be answered by the jury in the negative because the indebtedness of Weeks to the Oil Well Supply Company was for the purchase price of the property in controversy, and his indebtedness to Peabody was for board and lodging, whereas Weeks’ indebtedness to Marchman was for rent of a drilling outfit, which had been benefited instead of injured by use Weeks had made of it. The complaint because of the argument was based on the fact that there was neither pleading nor evidence showing what Weeks’ indebtedness to the Oil Well Supply Company and Peabody was for, nor the effect on the drilling outfit of use Weeks made of it.
    Lasseter & Simpson, of Tyler, for appellants.
    Bulloch & Ramey, of Tyler, for appellee.
   WILLSON, C. J.

(after stating the facts as above). We are not satisfied it was error to grant the new trial on the grounds specified in the trial court’s order (Conlisk v. Bender [Tex. Civ. App.] 245 S. W. 941; Harvey v. Ry. Co. [Tex. Civ. App.] 261 S. W. 197; Gulf, C. & S. F. R. Co. v. Harvey [Tex. Com. App.] 276 S. W. 895; Id. [Tex. Com. App.] 278 S. W. 839; Coons v. Culp [Tex. Civ. App.] 278 S. W. 914); but, if we were, we would not disturb the judgment, for, as we view the record, there is nothing in it showing the new trial should not have been granted on other grounds of the motion. If it should have been, then, without respect to whether it should have been granted on the grounds specified by the trial court or not, the judgment is not erroneous, and should not be disturbed by this court.

We do not think a presumption that the trial court considered and overruled the other grounds of the motion should be indulged, for, having determined that appellee was entitled to a new trial because of argument of counsel and conduct of the jury, there was no reason why the court should have considered other grounds of the motion.

If we were called upon to determine whether other grounds of the motion should have been sustained or overruled, we could not do so, for the record sent to this court was not accompanied by a statement of facts. The burden was on appellants to show error in the judgment entitling them to have it reversed here, and we do not think they have done so.

In Missouri, and perhaps in other states, it is held that the effect of specifying the grounds upon which a new trial is granted is to overrule all other grounds of the motion (James v. Butcher [Mo. App.] 215 S. W. 767; Dietrich v. Ice Co. [Mo. Sup.] 286 S. W. 38); but in that state there is a statute which requires the court to specify the grounds upon which he grants a new trial (Stoner v. Royar, 200 Mo. 444, 98 S. W. 601). There is no such statute in this state, and we see no reason why an appellant seeking a reversal of a judgment granting an appellee a new trial should not be required to show error, as he must in other eases, before he is entitled to have the judgment he complains of set aside. Ry. Co. v. Thomason (Tex. Civ. App.) 280 S. W. 325; Kauffman v. Maier, 94 Cal. 269, 29 P. 481, 18 L. R. A. 124; Lumber Co. v. Westerfield, 26 Nev. 332, 67 P. 961, 69 P. 899; In re Boyd, 199 Mass. 262, 85 N. E. 464; Weisser v. Ry. Co., 148 Cal. 426, 83 P. 439, 7 Ann. Cas. 636.

The judgment is affirmed. 
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