Ablowich v. Greenville Natl. Bank.

BROWN, Associate Justice.

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 *432 jury passed upon the lien of the mortgage. In fact, everything connected with it shows that the jury disregarded the charge of the court and the undisputed evidence and found against the lien, for the court not only instructed the jury to find the mortgage if they found the debt, but gave the form of the verdict in which was written “with a foreclosure of the mortgage lien.” In returning the verdict, the jury adopted the very language of the court in the form of the verdict as to the note, but omitted that portion which referred to the mortgage lien. It therefore can not be said that the jury found in favor of the lien, but it must necessarily follow that they found against it when they expressly eliminated from the verdict which they found the language finding the lien.

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 *433 itself, but in the same ease, it was held that upon other matters which were not embraced in that proposition, it was necessary for the jury to find upon the issue. The cases cited by the honorable court of Civil ¿Yppeals do not sustain its judgment.

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.