Mack Financial Corp. v. Decker

Decision Date11 December 1970
Docket NumberNo. 17521,17521
PartiesMACK FINANCIAL CORPORATION, Appellant, v. Hal DECKER, d/b/a Hal Decker Oil Company, Appellee.
CourtTexas Court of Appeals

A. B. Conant, Jr., Shank, Irwin, Conant & Williamson, Dallas, for appellant.

Bobby C. Williams, Beaumont, for appellee.

DIXON, Chief Justice.

Appellant Mack Financial Corporation sued appellee Hal Decker, doing business as Hal Decker Oil Company, for a deficiency judgment following the repossession and resale of a truck under the terms of a chattel mortgage.

A jury having been empanelled appellant proceeded to present its evidence. After appellant rested its case appellee filed a motion for instructed verdict. The motion was sustained. The court then withdrew the case from the jury and rendered judgment that appellant take nothing by its suit.

In his motion for instructed verdict appellee alleged that appellant (1) failed to meet its burden of proof in that it did not show that appellant is the holder of the note and chattel mortgage made the basis of the suit; (2) failed to show that the instrument constituting the note and mortgage was executed by appellee, or by anyone having the authority of appellee to execute the note and mortgage, or bind appellee; (3) failed to show that any demand was made on appellee; (4) failed to show the reasonableness of the attorney's fees; and failed to show that the repossession expense was reasonable or necessary, or that such monies were actually expended by appellant.

Appellant has presented seventeen points of error in which it asserts in substance that the court erred in withdrawing the case from the jury and rendering judgment against appellant because (1) the record shows as a matter of law that appellant was the holder and owner of the note and mortgage at the time of trial, or at least raises a fact issue in that regard; (2) the evidence showed that the note was executed by appellee or by his authority, or at least raised a fact issue in that regard, and, further, appellee had ratified and adopted the chattel mortgage, or at least the record raises a fact issue in that regard, and there is no evidence controverting appellant's evidence; (3) a demand for payment was made of appellee though no proof of demand was required as a matter of law, or at least a fact issue was raised in regard to demand; (4) the note and mortgage specifically and contractually provided for the amount of the attorney's fees, therefore proof of reasonableness was not necessary; (5) the reasonableness and necessity of repossession expenses were irrelevant as a matter of law, in any event would not be grounds for an instructed verdict, and the record at least raises a fact issue in that regard; and (6) the court should have rendered judgment for appellant because all material elements of appellant's cause of action were established, or at least fact issues were raised in that regard.

At the outset we are met with the fact that appellee offered no testimony at the trial, he did not file a brief on appeal, and no oral argument was presented in his behalf when the appeal was submitted to us. Under these circumstances we accept the factual statements in appellant's brief as true. Rule 419, Vernon's Texas Rules of Civil Procedure; Gonzales v. Gonzales, 224 S.W.2d 520 (Tex.Civ.App., San Antonio 1949, writ ref'd); Davis v. Sturdivant, 306 S.W.2d 386 (Tex.Civ.App., Dallas 1957, no writ); Sunray Enterprises, Inc. v. Rosenaur, 335 S.W.2d 670 (Tex.Civ.App., Dallas 1960, writ ref'd n.r.e.); Works v. Wyche, 344 S.W.2d 193 (Tex.Civ.App., Dallas 1961, writ ref'd n.r.e.); Coates v. Coates, 355 S.W.2d 260 (Tex.Civ.App., Eastland 1962, no writ); Traweek v. Shields, 380 S.W.2d 131 (Tex.Civ.App., Tyler 1964, no writ); American Casualty and Life Ins. Co. v. Boyd, 394 S.W.2d 685 (Tex.Civ . App., Tyler 1965, no writ).

Appellant made a request for admissions pursuant to Rule 169, T.R.C.P. Appellee did not respond to...

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2 cases
  • Moore v. State
    • United States
    • Court of Appeals of Mississippi
    • December 5, 2017
    ...notarized signatures constitute prima facie evidence that he indeed signed the previous PCR motions. See Mack Fin. Corp. v. Decker , 461 S.W.2d 228, 230 (Tex. Civ. App. 1970) (An instrument acknowledged by the defendant "before a notary public ... is prima facie evidence of the execution of......
  • Smith v. Warth
    • United States
    • Court of Appeals of Texas. Court of Civil Appeals of Texas
    • July 27, 1972
    ...the contract was introduced into evidence without objection and is thus received in evidence as fully proved. Mack Financial Corp. v. Decker, Tex.Civ.App., NWH, 461 S.W.2d 228; see also Haan v. Daly, Tex.Civ.App., NRE, 409 S.W.2d Defendant's 2nd point is the trial court erred in finding pla......

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