Dodd v. Gaines

• Decision Date: 08 December 1891
• Parties: DODD <I>et al.</I> v. GAINES.
• Court: Texas Supreme Court

18 S.W. 618

DODD et al. v. GAINES.

Supreme Court of Texas.

December 8, 1891.

Commissioners' decision. Section A. Appeal from district court, Red River county; E. D. McCLELLAND, Judge.

Action for unlawful levy by Ed. P. Gaines against A. F. C. Dodd and others. On the verdict the court rendered judgment for plaintiff. Defendants appeal. Reversed.

Todd & Hudgins, for appellants. Sims & Wright, for appellee.

COLLARD, J.

This suit was brought by the appellee, Ed. P. Gaines, for $1,000 damages, against A. F. C. Dodd, sheriff of Red River county, and the sureties on his official bond, alleging the wrongful seizure and conversion by the sheriff and his deputies of a certain stock of drugs and goods belonging to plaintiff. The sheriff, Dodd, and his sureties, answered by general denial, and specially that the goods taken were the property of G. W. Christian, defendant in two attachment writs sued out against him by George K. Hopkins & Co. and A. B. Richards & Co.; that they were levied on as the property of Christian, and were subject to the levy; also, that they had been transferred by Christian to Gaines, prior to the levy, with the intent to hinder, delay, and defraud the creditors of Christian, which intent was known to Gaines, or, by the exercise of reasonable diligence, ought to have been known to him. The sheriff, Dodd, and his sureties, further set up that he was indemnified by Hopkins & Co. and Richards & Co., by their respective bonds of indemnity, asked that they and their sureties be made parties defendant, and that, if plaintiff should recover against him, he prayed for judgment over against his indemnitors. The attachment of Hopkins & Co. was for $312.90, sued out of the county court, and that of Richards & Co. was for a debt of $112.37, sued out of justice's court. Plaintiffs in the attachment suits answered separately, setting up the same defense against Gaines as that pleaded by the sheriff, and further alleged that they had prosecuted their suits against Christian to judgment, and had foreclosed their respective attachment liens on the goods. Upon the trial in the court below the jury returned the following verdict: "We, the jury, find for plaintiff, E. P. Gaines, the sum of $519.29, principal and interest, as follows: $291.80 principal, and $45.39 interest, making in all $337.19, against Geo. K. Hopkins & Co.; and against A. B. Richards & Co., $157.51 principal, and $24.59 interest, making in all $182.10. [Signed] J. C. WEST, Foreman." Upon this verdict the court entered up a judgment in favor of the plaintiff, Gaines, against the sheriff, Dodd, and the sureties on his official bond, for the sum of $519.29, and in favor of Dodd and bondsmen against Hopkins & Co. for $337.19, and against Richards & Co. for $182.10.

Dodd and sureties filed a motion asking that judgment be entered in their favor non obstante veredicto, also motions in arrest of judgment and for new trial, all of which motions were overruled. Dodd and his sureties have appealed and assigned errors, one of which is that the pleadings do not support the verdict, and the verdict does not support the judgment, stating the particulars of disagreement. We think the assignment is well taken. If a verdict expresses the findings of the jury upon the issues and facts, its form will be immaterial. It has been decided in this state that a verdict should be liberally construed, so that it will stand rather than fall, and that it will be presumed to have expressed the findings of the jury with reference to the pleadings, the facts, and the charge of the court. This was said in a case where the issues were indebtedness or not, and whether there was a vendor's lien to secure it, the verdict being as follows: "We, the jury, find that plaintiff, Mrs. W. P. Allen, shall recover from the defendants, John Patterson et al., the sum of five hundred and fifty-two dollars, (552 currency dollars,) this being the original amount sued for, with ten per cent. interest on the same to date. We also find that the entire tract of land sold by J. R. Allen, deceased, be and the same is hereby subject to the payment of this debt." The verdict was informal, but it was held "to have sufficient certainty to enable the court to ascertain the meaning of the jury to be that the consideration of the claim sued on was the land which they found subject to its payment." Patterson v. Allen, 50 Tex. 26, 27. There are other cases in this state holding that the meaning of the verdict may be arrived at by reference to the pleadings, upon which judgment may be entered. Traylor v. Townsend, 61 Tex. 145; Newcomb v. Walton, 41 Tex. 318. But we know of no case where it is held in this state that a verdict which omits to find upon an issue made will support a judgment on such issue. A verdict failed to find a mortgage lien; the judgment could not decree the lien. Bledsoe v. Wills, 22 Tex. 651; May v. Taylor, Id. 349. There is no need of a verdict to find a lien, where judgment is by default, the judgment in such case following the allegation; and hence such a judgment will be sustained. Morrison v. Van Bibber, 25 Tex. 154. Where defendant by cross-bill had asked that title be divested out of plaintiff, and invested in him, a verdict "for defendant" generally was held to be insufficient as a basis for a decree on the cross-bill in favor of defendant. Anderson v. Webb, 44 Tex. 147, 148. It is error to receive a verdict which fails to find on material issues. Ker v. Hutchins, 46 Tex. 390. A substantial variance in the verdict from the issue, or if it only find a part of the matter in issue, will not support a judgment on the issue. Moore v. Moore, 67 Tex. 296, 3 S. W. Rep. 284. In the last case cited it is said: "It is the right of the parties to have the jury pass upon all the facts controverted by the pleadings; and when they have omitted to do this, however clear and undisputed the evidence upon the issues not found, the court cannot render judgment...