Pearce v. Bell

| Tex. | Jul 1, 1858

Roberts, J.

The right of the plaintiff below, who is defendant in error, to amend his petition in an action for a debt and foreclosure of mortgage, notwithstanding an attachment issued in it, is too clear and well established to require any exposition.

The point which presents any difficulty is, whether the judgment foreclosing the mortgage was authorised by the verdict, which is in these words : “We, the jury, find for the plaintiff the sum of fifteen hundred and thirteen dollars.” ■

'The suit was founded on one note and two mortgages on the same negroes. The larger debt of the two was secured by a mortgage alone without a note. The general denial was pleaded, (without being sworn to,) and also a plea in reconvention. There was no motion in arrest of or to correct the judgment, or notice of appeal. And there is here no statement of facts or bill of exceptions. This finding of the jury, under the issue, could not possibly have been arrived at without also finding that the mortgage, securing the larger portion of the debt, had been executed. For this debt was evidenced only by the mortgage. As to the smaller debt, both the note and the mortgage were made part of the petition by being attached to and exhibited as part thereof. They could hot therefore have been objected to in evidence, on account of any variance. (Greenwood v. Anderson, 8 Tex. R. 225; Peters v. Crittenden, Id. 131.) Under the issue, there could have been no proof that these instruments were not executed, as charged in the petition ; for the plea was not sworn to. (Hart. Dig., Art. 741.)

By looking into the pleadings, 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 his debt.

The question of law is, shall the verdict—deficient in not expressly finding one of the issues in the case—receive the benefit of the light thus reflected upon it by the pleadings, so as to supply by intendment, that which is not expressed in it, but which necessarily follows from that which is expressed, viewed in connection with the pleadings ?

The afiirmation of this proposition has been uniformly maintained by the rulings of this Court. (Galbreath v. Atkinson, 15 Tex. R. 24 ; Avery v. Avery, 12 Id. 57 ; Moke v. Fellman, 17 Id. 368 ; Parker v. Leman, 10 Id. 116 ; James v. Wilson. 7 Id. 232.)

Uumerous decisions might be collected from other ñíaie-s in support of this rule.

In a case in Georgia the jury found a verdict in “ favor of Henrietta G. Randon, (formerly Henrietta G. Ogletree,) in her own right and for her own use,” &c., in a suit by her husband and herself, to recover slaves, claimed by them in right of the wife. The marriage of the plaintiffs was put in issue, as well as their right to the property, and it was objected to the verdict that it did not find one of the issues. But the Court say, that the shape of the verdict, indicating the right of the wife to the slaves as her separate property, and styling her Henrietta G. Randon, (formerly Henrietta G. Ogletree,) showed that the jury did pass upon the issue of marriage, and find it in favor of plaintiffs. (Simmons et al. v. Randon and Wife, 9 Ga. R. 545 ; see also Beckwith et al. v. Carlton & Co., 14 Id. 692 ; Pickett v. Richett, 2 Bibb, 178.)

It is the duty of parties to superintend the entry of judgments. Applications to correct a judgment, so as to make it conform to the verdict, or to set aside a verdict because it did not find the issues or found them defectively, should be entertained with much more favor in the Court below than in this.

Judgment affirmed.