T. P. Hickox brought this suit against J. H. Tippett, and sought to, recover a judgment for damages, upon allegations to the effect that the plaintiff had title to, or was entitled to the possession of, certain tracts of land in what is known as the Goode pasture, in Crockett county, and that the defendant had unlawfully caused certain cattle and sheep ■ to be herded upon the lands referred to. Both actual and exemplary damages were sued for.
The defendant’s answer included general and special exceptions, a general denial, and a cross-action, alleging in substance that he was the owner or entitled to possession of certain sections of lands in the Goode pasture, and that the plaintiff had unlawfully caused his sheep to be herded upon such lands, thereby entitling him to recover damages.
The trial court submitted the case upon special issues, and upon the jury’s answers thereto rendered judgment for the plaintiff for $560, and the defendant has appealed.
[1] The first special issue submitted by the court to the jury is as follows:
“Did defendant, Tippett, or any of his employees, without plaintiff’s consent, drive and herd said Tippett’s sheep and cattle, or either, upon lands leased to plaintiff in the Goode pasture in Crockett county, Tex., at the times alleged in plaintiff’s petition? Answer this question ‘Yes’ or ‘no.! ”
The jury answered that question, “Yes.”
We sustain appellant’s eighth assignment of error, which complains of that charge, because there was no evidence tending to show that the defendant or his employees herded any cattle on the plaintiff’s land. Our Supreme Court has frequently held that it is reversible error to submit an issue to a jury, when there is no testimony tending to support that issue, unless the record clearly shows that the verdict of the jury was founded upon some other issue; which is not so shown in this case.
We make the same ruling concerning the ninth assignment, which complains of the action of the trial court in giving another charge subject to the same objection.
We are also of the opinion that the appellant urged sound objections to special charge No. 5, asked by the plaintiff and given by the court; but as that charge related to the defendant’s cross-action, and as we hold that the defendant was not entitled to maintain his cross-action in this suit, and as the trial court should have sustained the plaintiff’s exception thereto, we deem it unnecessary to further discuss the special charge referred to.
[2] The defendant’s cross-action did not arise out of, was not incident to, or connected with, the plaintiff’s cause of action; and therefore he was not entitled to have it litigated in this case, and the court should have sustained the plaintiff’s exceptions thereto. Carothers v. Thorp, 21 Tex. 358; Duncan v. Magette, 25 Tex. 245; Gage v. Hunter, 43 Tex. Civ. App. 241, 94 S. W. 1104; Smith v. Bates (Tex. Civ. App.) 27 S. W. 1044; Riddle v. McKinney, 67 Tex. 29, 2 S. W. 748.
[3] Upon another trial, we. suggest that the trial court limit the -testimony to transactions occurring after the plaintiff acquired his right to possession of the land held by him; and also that it exclude the testimony of the plaintiff, who testified that another person, while in the employ of the defendant, told him that the defendant had instructed him to crowd the plaintiff off of his land. That testimony was hearsay, and should not have been admitted.
Many of the other questions presented in appellant’s brief relate to his cross-action, and are eliminated by our holding that he was not entitled to litigate said action in this suit. Also questions relating to injury to the fence were eliminated by the action of the trial court, in not submitting to the jury any issue relating to the fence.
All other questions presented in appellant’s brief have been considered and are decided against him.
For the error indicated,, the judgment is reversed, and the cause remanded.
Reversed and remanded.
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