Goss v. Pilgrim

• Decision Date: 31 October 1866
• Citation: Goss v. Pilgrim, 28 Tex. 263 (Tex. 1866)
• Parties: JOHN M. GOSS v. THOMAS J. PILGRIM.
• Court: Texas Supreme Court

28 Tex. 263

JOHN M. GOSS

v.THOMAS J. PILGRIM.

Supreme Court of Texas.

October, 1866.

This court must presume that the order vacating the grant of the new trial was rendered correctly and in accordance with the agreement of the parties.

This court cannot notice the paper purporting to be the agreement of the parties, because, although filed in the cause and copied into the transcript, it is not shown by any statement of facts or bill of exception that such paper was brought to the attention of the court below, or that the order revoking the new trial was made in pursuance of that agreement, instead of another agreement announced to the court below. Pas. Dig. art. 1581, note 613; 2 Tex. 381;11 Tex. 39.

This court cannot notice every paper that may have been filed in the cause while pending in the court below, when it is not made to appear, by a statement of facts, bill of exception, or otherwise, that some action was taken upon it by the court below. Castro v. Illies, 11 Tex. 39; and Duggan v. Cole, 2 Tex. 381, cited by the court.

The order of sale being in substantial compliance with the statutory directions on the foreclosure of mortgages, in the 119th section of the statute, the portions relating to the vendor's lien may be treated as surplusage. Pas. Dig. art. 1480, note 576.

It being assigned and insisted that the judgment is excessive in consequence of a miscalculation of the amount of the remittitur, which amount is specified in the order of the court below, this court, regarding the judgment as entered by confession, will not consider the question. 2 Tex. 581;13 Id. 394;22 Tex. 87;26 Tex. 348.

ERROR from Gonzales. The case was tried before Hon. FIELDING JONES, one of the district judges.

For the purpose of elucidating the rulings of the court, the facts of this case may be stated in brief; but, as there is no statement of facts or bill of exceptions, it is not necessary to the merits.

Suit on a note given for real estate, and also to foreclose a mortgage on the same property, given to secure the note, instituted by the indorsee of the note against the maker, and also against a purchaser of the mortgaged property. The maker answered that the note was assigned to the plaintiff after maturity, and plead in offset two notes executed by the payee of the note sued on. The other defendant filed a general demurrer and general denial. Verdict in favor of the plaintiff for the amount of the note sued on and interest, and judgment therefor, with order of sale framed as though to enforce a vendor's lien, instead of to foreclose a mortgage. A new trial was granted to the defendants; but by a subsequent order, purporting to be made on agreement of the parties, the order granting a new trial was set aside on the plaintiff remitting the amount of the offsets plead. There is no statement of facts nor bill of exceptions, but the transcript sets out an instrument of the same date as the grant and revocation of the new trial, and purporting to be an agreement between the plaintiff and the maker of the note sued on, that a “judgment may be entered at this term of the court for the amount of the note and interest sued on, after deducting the amount of the two notes filed and plead by the defendant as offsets.” The purchaser of the mortgaged property did not join in the writ of error.

Parker & Miller, for the plaintiff in error.

No brief for the defendant in error.

SMITH, J.

The note and mortgage sued upon were executed by Goss to De Witt to secure the purchase money for a lot and improvements in the town of Gonzales. De Witt indorsed a note in blank, it being payable to his order, to Pilgrim. Crawford purchased the property covered by the mortgage, and hence is made a party defendant below, and he answers. Goss avers that the note was transferred after its maturity, and plead in offset two notes executed by the payee, De Witt. A trial was had, and verdict and judgment were rendered in favor of Pilgrim for the amount of his note, and the property was ordered to be sold.

On motion of Goss a new trial was granted, and on the same day the following order was made by the court, viz.: “T. J. Pilgrim v. John Goss et al. Comes the plaintiff by his attorneys and remits so much of the judgment heretofore entered in this cause as the two notes and their interest, plead by the defendants as offsets, amount to, to wit, $315.99; and by agreement the order granting a new trial in the cause is set aside and vacated.” Goss alone brings the cause to this court by writ of error, and complains that the judgment was not in accordance with the agreement filed in the cause.

There is no statement of facts or bill of exceptions in the record, and we must presume the remittitur of $315.99 and the setting aside of the...