95 Tex. 429 | Tex. | 1902
Lead Opinion
The Greenville National Bank instituted suit against the plaintiff in error to recover the amount of a note for $450 alleged to have been executed by Ablowich to M. M. Brooks and transferred by Brooks to the bank; and also to foreclose a mortgage which was alleged to have been given by the defendant upon the land described in the petition to secure the note sued upon. Both note and mortgage were made part of the petition. The defendant pleaded a general denial and a special plea which it is not necessary for ns to notice in this opinion.
At the trial the district judge instructed the jury: “The plaintiff in this cause is entitled to recover the full amount of the note sued on, which is $567.75, with a foreclosure of the mortgage lien, and you will so find, unless you find for the defendant upon the following'issue. * * * The form of your verdict will be: ‘We the jury find for the plaintiff the sum of - dollars, with a foreclosure of its mortgage lien/ filling in the blank with the sum jnu find.” The jury returned the following verdict: “We the jury find for the plaintiff the sum of $567.75. E. W. Hardy, Foreman;” upon which the court entered judgment against the defendant for the amount found by the jury and also foreclosed the lien of the mortgage upon the land described. The defendant filed a motion for a new trial, one of the grounds being as follows: “The verdict of the jury is wholly insufficient to sustain the judgment foreclosing the lien as prayed for by the defendant,” which was presented in the same words in the Court of Civil Appeals as an assignment of error.
We have examined all the assignments presented in the application and find no error except the foreclosing of the mortgage lien.
When a jury has been demanded by either party, he is entitled to have every material issue made by the pleading and the evidence submitted to that jury, and the trial court can not enter a judgment upon a verdict which fails to pass upon any material issue submitted to the jury, unless it be in case of a special verdict, which is provided for by statute. May v. Taylor, 22 Texas, 348; Bledsoe v. Wills, Id., 650; Silliman v. Gano, 90 Texas, 647. In May v. Taylor, Judge Roberts said: “The judgment was rendered not only upon the note but also upon the mortgage, concerning which there was no finding in the verdict. The province of the verdict is to declare the facts upon which the judgment is to be predicated. The existence of the mortgage, as well as the note, was put in issue and the entire omission of a finding upon the mortgage is fatal to the judgment, so far as it relates to the mortgage.” We find nothing in the record which would indicate that the
The honorable Court of Civil Appeals, in deciding the question, said: “The petition declared upon the note and mortgage. The defendant plead a general denial. The mortgage was introduced in evidence without objection. The defendant requested two special charges, in each of which he recognized the validity of the mortgage. The appellant, in stating the facts in his brief, to which there is no controversy, admits; that the trust deed described in the plaintiff’s petition was executed by defendant.” We have examined the special charges asked by defendant and do not find anything in them recognizing the mortgage. The statement in the brief of the attorney can not affect the question. It. is not a question whether the pleading sufficiently set out the instrument,, nor a question as to whether the evidence was sufficient to justify a finding in favor of the lien, for these are beyond dispute, but, under the-well settled rules of this court, the trial court has no power to enter-judgment upon facts well pleaded and indisputably proved unless the-issue presented and proved has been found by the verdict in favor of the party for whom judgment is rendered. In support of its conclusion,, the Court of Civil Appeals refers to Pearce v. Bell, 21 Texas, 690; Day v. Cross, 59 Texas, 608; Jones v. Ford, 60 Texas, 131; Railway v. Henderson, 86 Texas, 307.
In the first case referred to above, Judge Roberts, after reviewing the-facts, said: “By looking into the pleading, then, it is manifest beyond a doubt that the jury passed upon the mortgages as well as on the note- and must have equally found in favor of the plaintiff upon them as for the debt,” The case is put upon the ground that the record showed that the issue must have been found in favor of the plaintiff in arriving at the verdict. In the case of Day v. Cross, before cited, the contract was pleaded by the plaintiff and was also set up by the defendant in a. cross-plea, and the court held that the allegations in the cross-plea amounted to an admission of the contract which retained the lien upon the property, and therefore it was not necessary that the issue should have been expressly found. Ogden & Johnson v. Bosse, 86 Texas, 344. In Jones v. Ford, the court held that the finding of the jury necessarily included the finding of the issue of the right of possession in that case. In Railway v. Henderson, this court held that the findings of fact upon which the law would give a lien were sufficient without finding the lien
The trial court erred in foreclosing the lien of the mortgage and the Court of Civil Appeals erred in sustaining the judgment. It is therefore ordered that the judgment of the District Court and of the Court of Civil Appeals be reversed and that this cause be remanded.
Rehearing
ON MOTION FOR REHEARING.
The plaintiff in error claims that this court can not enter judgment for the debt because the lien upon the land was not established and the debt is less than $500. This position is sustained by the following cases decided by this court: Carter v. Hubbard, 79 Texas, 356; Barnes v. White, 53 Texas, 631; Snyder v. Wiley, 59 Texas, 448; Cameron v. Marshall, 65 Texas, 7. We are of opinion that the rule announced in the cases cited is based upon an erroneous construction of our Constitution, and they are' hereby overruled.
Section 8 of article 5’of the Constitution of the State of Texas, contains this provision: “The district court shall have original jurisdiction * * * in all suits in behalf of the State to recover penalties, forfeitures and escheats; of all case of divorce, of all misdemeanors involving official misconduct, of all suits to recover damages for slander or defamation of character, of all suits for trial of title to land, and for enforcement of liens thereon.” Jurisdiction is conferred in the several classes of cases without reference to the amount in controversy, but, being a suit of a particular class, the court has jurisdiction of whatever amount may be involved and of all of the issues which grow out of such litigation. In suits for “the enforcement of liens upon land,” jurisdiction is given of the debt which the lien secures without regard to the amount, as well as to foreclose the lien, and is not affected by the following provision of that section: “Of all suits, complaints or pleas whatever, without regard to any distinction between law and equity, when the matter in controversy shall be valued at or amount to $500, exclusive of interest.” The construction placed upon the Constitution by which the jurisdiction of the court over the amount involved in the suit to foreclose a lien upon land, upon failure of the lien, is made to depend upon the provision last quoted, is without support in the language or in the evident intention of the framers of the Constitution. Power is given over “suits to enforce liens” on land, and a failure of the lien makes it no less a “suit to enforce a lien.” The decisions cited are antagonistic to the general principle that, “the jurisdiction of the court can not be defeated when the case stated in the petition is within its jurisdiction, unless it is made to appear that the allegations upon
We can see no difference in principle between this case and the cases in which the amount in controversy was reduced by proof below the jurisdiction of the court but jurisdiction was retained, nor the other class of cases in which the court, having acquired jurisdiction by the issuance of the writ of injunction, entered judgment for a sum less than $500. The practice which was inaugurated by the former decisions involves litigants in much doubt and difficulty and has resulted in the dismissal of cases, perhaps in the loss of the debts, by the statute of' limitations. We see no reason why the previous construction should be supported against what is to our minds the better rule of practice followed in all other cases, and, as we believe, entirely consistent with the Constitution of this State.
Reversed and rendered.
[The motion of plaintiff in error for a rehearing was overruled. The motion for defendant in error, so far as’ it sought an affirmance of the judgment of'the trial court, was also overruled; but the portion asking that judgment be rendered was sustained and judgment entered in his favor for the debt and interest, without foreclosure, and for costs of the trial court, he being taxed with the costs of the appeal and writ of error.]
