Handel v. Elliott
| Decision Date | 09 October 1883 |
| Docket Number | Case No. 3854-1351. |
| Parties | RICHARD HANDEL v. J. T. ELLIOTT. |
| Court | Texas Supreme Court |
ERROR from Dallas. Tried below before the Hon. Z. Hunt.
Elliott brought this suit against Handel January 21, 1875, to recover on an account for $217.92 and interest, and to foreclose a material man's lien on a house and lot in the city of Dallas. Handel answered by general demurrer and general denial, and other pleas not necessary to notice. April 10, 1878, the case was tried, and a verdict returned for Elliott for $275.04, for which judgment was rendered, and also the lien foreclosed.
There was no statement of facts or bills of exception in the record.
The material errors assigned were as follows: That the judgment foreclosing the lien was not supported by the verdict. That the district court had no authority to render a personal judgment, the amount being less than $500. The lien which accrued and was fixed under the act of 1871 was destroyed in the repeal of that by the act of 1876.
As a basis for the decree of foreclosure it was in effect therein recited that after the charge was read and before the jury retired, Handel admitted that, if he owed the debt, then all the steps had been taken to fix and secure the lien, and that the lumber named in the bill had been used in the construction of his house, stating that the only issue upon which the jury was required to pass was, whether or not the materials had been sold by Elliott to him.
The verdict of the jury was as follows: “We, the jury, find for the plaintiff the amount sued for, with eight per cent. interest from 1st January, 1875, to date:
R. W. Goldthwaite, for plaintiff in error.
Morgan & Gibbs, for defendant in error.
In the disposition of this case it is not necessary to consider the various errors assigned. The main proposition is that the judgment does not conform to nor is it sustained by the verdict.
The rule seems to be well settled that the judgment must be supported by the verdict and the admissions contained in the pleading of the parties. That is, in the investigation of the question resort can only be had to the verdict and admissions directly or indirectly made in the pleadings, and if not sustained by these, the judgment would have no legal basis for support. Smith et al. v. Johnson, 8 Tex., 425;Benett v. Butterworth, 11 How., 675.
Here the court, by the charge, submitted to the jury the issue as to the debt, and also that as to the existence of the lien; the jury by the verdict pass upon and find as to the debt, but there is no finding as to the lien. This is equivalent to finding against the existence of the lien (Roberts v. Johnson, 48 Tex., 133), unless its existence is admitted by the pleading of the plaintiff in error. Among other defenses, however, the general denial was pleaded; and no admission of the existence of the lien, either directly or indirectly, is found in the answer. But defendant in error claims that the oral admissions made by the plaintiff in error after the charge was read and before the jury retired to consider of their verdict, and which admissions are recited in the judgment, furnish a sufficient and legal basis for that part of the judgment in which a foreclosure of the lien is decreed. At most such admissions are but evidence of the facts to which they relate, and which alone might support a finding of the jury upon the issue; but can no more be made the basis of any part of the judgment, than can any other evidence introduced upon the trial.
It was essential, to support the decree of the foreclosure of the lien, either that its existence should be admitted by the pleadings or else affirmed by the verdict of the jury. May v. Taylor, 22 Tex., 348;Bledsoe v. Wills, Id., 650;McConkey v. Henderson, 24 Tex., 212. In our opinion that portion of the judgment decreeing a foreclosure of the lien has no legal basis for its support, and is therefore erroneous.
The proposition that the amount in controversy, being less than $500, the district court could not render a...
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