141 S.W. 134 | Tex. App. | 1911
This is an action of debt by the Farmers' State Bank of Knox City against the Knox City Milling Company, a corporation, and J. W. Moore, seeking also a foreclosure of a vendor's lien upon certain flouring mill property alleged to belong to the defendant corporation. The defendants answered, and in addition to the general issue each pleaded in reconvention for damages for *135 the alleged wrongful suing out and levy of a writ of attachment in the cause. The plaintiff's cause of action and the reconvention of the two defendants were submitted to the jury, and the following verdict was returned: "We, the jury, find for plaintiff the amount prayed for in his petition. [Signed] J. W. Hinton, Foreman." Upon this verdict the trial court entered judgment in favor of the plaintiff for the amount sued for, decreed a foreclosure of the alleged vendor's lien, and further entered judgment that the defendants take nothing by their cross-action, etc. From this judgment the defendants have appealed.
At the threshold of the consideration of the case we are forced to sustain the assignment that the judgment entered is not supported by the verdict returned. In the early case of May v. Taylor,
In view of a reversal for this error, it would be improper to discuss the sufficiency of the evidence even to sustain the judgment upon these issues, and we will not do so. Other questions presented, such as the improper argument of counsel, could hardly arise on another trial, and need not be discussed.
For the error above indicated, the judgment is reversed, and the cause remanded.