Scott v. Farmers' & Merchants' Nat. Bank

• Decision Date: 12 March 1902
• Citation: 67 S.W. 343
• Parties: SCOTT et al. v. FARMERS' & MERCHANTS' NAT. BANK.
• Court: Texas Court of Appeals

67 S.W. 343

SCOTT et al. v. FARMERS' & MERCHANTS' NAT. BANK.

Court of Civil Appeals of Texas.

March 12, 1902.

On motions for rehearing. Overruled.

For former opinion, see 66 S. W. 485.

KEY, J.

All the parties to this case have filed motions for rehearing, none of which present anything new, except the contention of Scott and the Citizens' Railway Company that this court has overlooked and disregarded article 1014 of the Revised Statutes, and in Markham v. Wortham, 67 S. W. 341, 4 Tex. Ct. Rep. 55, has made a ruling in conflict with the ruling on one point in this case. The motion is not very clear as to the point sought to be made in reference to the statute. It contends that we fell into error in treating the case as if the judgment was based upon a general, instead of a special, verdict; and attention is directed to the fact that the article of the statute referred to authorizes the submission of a case in a court of civil appeals on a special verdict. Even a casual reading of our former opinion will disclose the fact that we treated the case as one submitted in this court upon a special verdict, because that opinion sets out in full the essential facts established by the verdict, and holds that, as there was no sufficient assignment of error addressed to the action of the trial court in refusing to set it aside, it was conclusive as to issues decided by the jury; and in support of that ruling we cited articles 1332 and 1333 of the Revised Statutes, which articles require such effect to be given to special verdicts. And we find nothing in article 1014 that requires a modification of any ruling made in the former opinion. The case of Markham v. Wortham is not in conflict with any ruling made in this case. It is true, in that case this court affirmed a judgment rendered for the plaintiff notwithstanding a special verdict finding certain facts according to the defendant's contention; but there was another and controlling issue in the case, which was not submitted to the jury, and about which there was no dispute in the testimony, and that was whether or not the power of sale contained in a certain deed of trust had been revoked by the death of the mortgagor, and subsequent administration upon his estate. Applying the law to the undisputed facts bearing upon that question, we held that the power referred to had been revoked, and therefore the trial court acted properly in rendering judgment for the plaintiff, restraining the sale of the mortgaged property; conceding the other facts to be as found by the special verdict. The facts so found had no relation to or bearing upon the question of revocation of the power of sale, and, if that power was in fact revoked, the facts found by the jury were immaterial, and constituted no defense to the plaintiff's suit; and in such a case the plaintiff may move for and obtain a judgment notwithstanding the verdict. 1 Black, Judgm. § 16.

Scott and the Citizens' Railway Company have requested findings of fact on many specified points. Some of these requests are answered by the facts stated in our former opinion, and others by the verdict of the jury. Others have reference to the pleadings and assignments of error in this case, and to the terms of written documents in the statement of facts, concerning which we are not required to make findings of fact. Written instruments speak for themselves, and on application for writ of error the supreme court will examine and construe them for itself. Still other requests relate to the decree in favor of Parker and associates. Having decided the question of title to the property in favor of the Farmers' & Merchants' National Bank, and against the contention of Scott and the Citizens' Railway Company, we are not required to make any findings of fact or decide any questions of law urged by the latter as against the decree in favor of Parker and associates, because, if Scott and the Citizens' Railway Company have no interest in the property, it is immaterial to them what liens may be established against it. It may be...