Henne & Meyer v. Moultrie

• Decision Date: 21 December 1903
• Citation: 77 S.W. 607
• Parties: HENNE & MEYER v. MOULTRIE.
• Court: Texas Supreme Court

77 S.W. 607

HENNE & MEYER v. MOULTRIE.

Supreme Court of Texas.

December 21, 1903.

Certified Questions from Court of Civil Appeals of Third Supreme Judicial District.

Action by Henne & Meyer against Paul Moultrie. From a judgment for defendant, plaintiffs appeal to the Court of Appeals, which certifies questions to the Supreme Court. Questions answered.

E. A. Wallace and Henderson, Morrison & Freeman, for appellants. N. H. Tracy, James Bass, and Moore & Moore, for appellee.

BROWN, J.

These are certified questions from the Court of Civil Appeals for the Third Supreme Judicial District. The statement and questions are as follows:

"Appellants, Henne & Meyer, sued appellee, Paul Moultrie, on a promissory note for $23.45, with interest and collection fees, and to foreclose a chattel mortgage included in the same instrument with the note. Appellee pleaded general denial, payment, and certain counterclaims, and in reconvention for damages. The case originated in the justice's court, but was appealed to and tried by the county court, and the amount in controversy, by reason of appellee's answer, was sufficient to give this court jurisdiction on appeal. Upon trial in the county court the evidence, without contradiction, showed the execution and delivery of the note. There was no evidence to sustain appellee's counterclaim and plea in reconvention. The only evidence to sustain the plea of payment was that certain sums were paid by appellee to appellants, but the undisputed evidence showed that they were properly applied by appellants to other indebtedness owing by appellee, and that the note and mortgage sued upon were unpaid. The trial was before a jury, and we have concluded that under the undisputed evidence in the case the lower court should have instructed a verdict for plaintiffs for the amount of their note and a foreclosure of their mortgage. The court however, authorized the jury to consider the question of payment, and the jury returned a general verdict for the defendant. Appellants presented a motion in the lower court to enter judgment in their favor on the note and mortgage, non obstante veredicto. This motion was overruled, as was also appellants' motion for a new trial, and judgment was entered for the defendant. Appellants have brought the case to this court, and, under proper assignments, ask a revision of the action of the lower court in overruling their motion to enter judgment, and also ask that under the undisputed evidence in the case we set aside the judgment of the county court, and render judgment in their favor on the note and mortgage.

"The power of this court to reverse and render in such case seems to be clearly stated in the cases of H. & T. C. Ry. Co. et al. v. Strycharski (Tex. Sup.) 37 S. W. 415, and Patrick v. Smith, 90 Tex. 267, 38 S. W. 17. In the case of Ablowich v. Bank, 67 S. W. 79, 4 Tex. Ct. Rep. 394, however, where the jury found a verdict for the amount of the note sued upon, and the court rendered judgment in addition foreclosing the lien, the judgment was reversed and remanded by the Supreme Court, after having been affirmed by the Court of Civil Appeals, and the court there says: `It is not a question whether the pleading sufficiently set out the instrument, nor a question as to whether the evidence was sufficient to justify a finding in favor of the lien, for these are beyond dispute; but under the well-settled rules of this court the trial court has no power to enter judgment upon facts well pleaded and undisputably proved, unless the issue presented and proved has been found by the verdict in favor of the party for whom judgment is rendered.'

"Article 1027, Rev. St. 1895, authorized this court upon reversal to render such judgment as `the court below should have rendered.' In view of the expressions in the case last cited and the line of authorities supporting it, we have doubt as to our power to set aside a judgment based upon a verdict, and render judgment in accordance with the undisputed evidence in the record. We therefore, under the foregoing statement of facts, certify the following questions:

"(1) Did the county court have the power, under the undisputed evidence in this case, upon the motion of appellants, to enter judgment in their favor on the note and foreclosing their...