Ablowich v. Greenville Nat. Bank

• Decision Date: 17 March 1902
• Citation: 67 S.W. 79
• Parties: ABLOWICH v. GREENVILLE NAT. BANK.
• Court: Texas Supreme Court

67 S.W. 79

ABLOWICH v. GREENVILLE NAT. BANK.

Supreme Court of Texas.

March 17, 1902.

Error to court of civil appeals, Fifth supreme judicial district.

Action by the Greenville National Bank against A. A. Ablowich. There was a judgment for plaintiff, and from an affirmance by the court of civil appeals defendant brings error. Reversed.

B. F. Looney and Jno. T. Craddock, for plaintiff in error. L. A. Clark, for defendant in error.

BROWN, J.

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 us 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 you 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 cannot 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 Tex. 348; Bledsoe v. Wills, Id. 650; Silliman v. Gano, 90 Tex. 647, 39 S. W. 559, 40 S. W. 391. 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 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...