Boydston v. Morris

• Citation: 10 S.W. 331
• Parties: BOYDSTON <I>v.</I> MORRIS.
• Decision Date: 09 November 1888
• Court: Supreme Court of Texas

10 S.W. 331

BOYDSTONv.

MORRIS.

Supreme Court of Texas.

November 9, 1888.

Appeal from district court, Rockwall county; ANSON RAINEY, Judge.

W. B. Wade, for appellant.

GAINES, J.

Appellee brought this suit to recover of appellant the value of certain corn appropriated by the latter, upon which appellee claimed a lien. One Steger executed to appellee a chattel mortgage upon his growing crop, which was duly registered. After the registration appellant bought of Steger 84 bushels of corn, which he mingled with his own, and subsequently fed to cattle. During the progress of the trial the plaintiff offered in evidence a copy of the mortgage, which was admitted by the court over the objections of the defendant. The objection was upon the ground, among others, that the original instrument had not been accounted for. The admission of the copy was error. In the absence of proof of the loss or destruction of the original, secondary evidence of its contents was not admissible. The statute provides that a copy of a chattel mortgage, duly filed for registration, certified to by the clerk in whose office it has been filed, "shall be received in evidence of the fact that such instrument * * * was received and filed according to the indorsement of the clerk thereon, but of no other fact." 2 Sayles, Rev. St. art. 3190b, § 3. In order to establish the mortgage, its execution should be proved, and the original produced, or its absence accounted for by showing its loss or destruction. For the error of the court in admitting the copy in evidence the judgment must be reversed.

There are other assignments of error, but none of them are well taken. We will dispose of them in a brief manner: First. We are of the opinion that the plaintiff did not lose his lien by proceeding to judgment in the justice's court on his debt, and to foreclose his mortgage against the mortgagor, without making appellant a party. The judgment did not affect appellee's rights, but it left the lien intact. The judgment was evidence that Steger still owed the debt. Second. It was not necessary to make Steger a party to the present suit. This was not an action to foreclose the mortgage. Appellant had disposed of property upon which appellee had a lien. The lien could not be foreclosed upon it, because it was no longer in existence. By the wrong of appellant, appellee was deprived of the right of having the corn sold for the payment of his debt, and is entitled to compensation. The amount of his...