Adams v. Houston Nat. Bank

• Decision Date: 25 January 1928
• Docket Number: (No. 861-4929.)
• Citation: 1 S.W.2d 878
• Parties: ADAMS v. HOUSTON NAT. BANK.
• Court: Texas Supreme Court

Page 878

1 S.W.2d 878

ADAMS v. HOUSTON NAT. BANK.

(No. 861-4929.)

Commission of Appeals of Texas, Section B.

January 25, 1928.

Error to Court of Civil Appeals of Ninth Supreme Judicial District.

Suit by James R. Adams against the Houston National Bank and others. Judgment for plaintiff was reversed and remanded by the Court of Civil Appeals (295 S. W. 198), and plaintiff brings error. Reversed in part, and affirmed in part.

W. Owen Dailey and Ralph W. Plummer, both of Houston, for plaintiff in error.

W. G. Love and Wagner & Wagner, all of Houston, for defendants in error.

SPEER, J.

This suit was instituted by James R. Adams against Charles D. Spencer for debt and to foreclose certain chattel mortgages upon his rice crop for the year 1920, and against the Houston National Bank, the Old River Company, and the Industrial Rice Mill, Inc., for conversion of the property covered by the chattel mortgages. There was a jury impaneled, but after the evidence was all in, the court withdrew the case from the jury and rendered judgment for the plaintiff against the defendants Spencer, Houston National Bank, and Old River Company, jointly and severally, for the sum of $2,528.98, with interest. There was likewise a judgment in favor of the plaintiff against the defendant Industrial Rice Mill, Inc., for a smaller sum, which, it was directed, when paid should be credited on the judgment of Adams against the other defendants. The defendant Houston National Bank alone appealed, and the Court of Civil Appeals reversed the judgment and remanded the cause for another trial. 295 S. W. 198.

The question first properly to be decided is presented by plaintiff in error's proposition that:

"Where plaintiff's case is established by evidence other than his own testimony and by the unchallenged testimony of a defendant, and there are no controverted issues of fact, it is not error for the trial judge to withdraw the case from the jury and render judgment upon such uncontradicted testimony, and the case is taken out of the rule that the truthfulness of an interested witness cannot be assumed."

This is predicated upon assignments complaining of the ruling of the Court of Civil Appeals holding that the trial court erred in withdrawing the case from the jury and entering judgment for the plaintiff.

We find no fault with this proposition. The constitutional right to a jury trial does not include those cases where, under the evidence, there is no controverted issue of fact for determination. In such a case there is nothing which the court could submit to a jury, and there is therefore no error in discharging the jury previously impaneled and in rendering judgment in accordance with the undisputed facts.

But we are unable to sustain the assignments presenting this question, since the statement supporting the proposition is entirely insufficient. Rule 1 for the Supreme Court subd. (h), 159 S. W. viii, prescribing the essentials of an application for writ of error, declares:

"Each ground of error must be presented separately by an assignment stating clearly and succinctly the error complained of, which shall be immediately followed by such propositions of law, if the assignment be not itself submitted as a proposition, statement from the record, and citation of authorities, as will show in what manner the particular ruling complained of was reasonably calculated to cause and did cause the rendition of an improper judgment in the case."

While the assignment and proposition are, respectively, sufficient to challenge the judgment of the Court of Civil Appeals, nevertheless the statement which follows is deficient in this, that it does not indisputably appear therefrom that defendant in error bank converted any of the property upon which plaintiff in error held a mortgage. There is some evidence stated from which it might reasonably be inferred that it did convert 200 sacks of rice, but such conclusion is, at best, a mere inference deducible from the evidence and is not conclusive in the sense that it was not a jury issue; and if it were, this goes only to a part of the recovery, and we find nothing in the statement whatever from which even a jury could have found that plaintiff in error converted the balance of the mortgaged property. It is not our duty, nor our right, to examine the entire statement of facts to ascertain if plaintiff in error could have supported his assignment by a fuller statement from the record.

And for yet another reason the judgment of the Court of Civil Appeals remanding the case should not be reversed. It is well established that a proper judgment of the Court of Civil Appeals will not be reversed by the Supreme Court, even though that court puts its decision upon an improper ground. Holland v. Nimitz, 111 Tex. 419, 232 S. W. 298, 239 S. W. 185.

We have examined defendant in error's brief as appellant in the Court of Civil Appeals, and in presenting its complaint of the action of the trial court in withdrawing the case from the jury, in order to show that such ruling was not justified, there is set out under such assignment what the appellant declares to be "the only evidence with reference to the alleged conversion." This statement does not set forth any evidence, much less undisputed evidence, that defendant in error converted the mortgaged property. The statement thus presented by appellant to the Court of Civil Appeals was not challenged by the appellee, and we have furthermore read the statement submitted by appellee in reply thereto, and it does not contain such quotations from the record as would justify the action of the trial court. In such a case, the Court of Civil Appeals is authorized, if it is not its duty, to accept the statement by the appellant, and as we have shown, this statement would amply justify the holding of the Court of Civil Appeals that the trial court erred in withdrawing the case from the jury. See rule 31 for the Courts of Civil Appeals, 142 S. W. x.

We are not inclined to agree with the language of the Court of Civil Appeals that:

"Where a jury has been demanded and impaneled to try a matter in dispute between parties, the trial court has no power, over objection of the parties, to withdraw the case from the jury and enter judgment upon the facts, even though they be well pleaded and indisputably proved."

This is stating it too broadly. If the facts are well pleaded and indisputably proved, there is nothing to be submitted to the jury and the trial court could not do otherwise than to instruct a verdict or withdraw the case and render judgment. The cases cited for this statement by the Court of Civil Appeals, notably Ablowich v. National Bank, 95 Tex. 429, 432, 67 S. W. 79, 881, indicate that the court was misled by the doctrine obtaining in this state that a court has no authority to enter judgment non obstante veredicto. But the giving of a summary instruction or the withdrawal of a case from a jury does not violate this rule. But we do approve the final holding of that court to the effect that, in view of the evidence (as stated in the briefs), the trial court...