French v. Meyer Kiser , 277 S.W. 1114 ( 1925 )

Appellees sued upon a series of notes executed by appellant and a mortgage upon an automobile to secure their payment. A writ of sequestration was sued out and the car seized. Appellant answered by a general denial and a special defense not necessary to state. He also set up a cross-action for damages in the sum of $1,250 for the alleged wrongful and malicious issuance of the writ. In response to a peremptory instruction, a general verdict in favor of the plaintiffs was returned, and judgment in their favor rendered for $686.42, and foreclosure of the mortgage lien upon the automobile. The verdict made no finding with respect to the mortgage. A general denial having been filed, every fact pleaded by the plaintiff was put in issue. The verdict was therefore insufficient to support the judgment of foreclosure. May v. Taylor,22 Tex. 349; Bledsoe v. Wills, 22 Tex. 650; Preston v. Breedlove,45 Tex. 47; Handel v. Elliott, 60 Tex. 147; Ablowich v. Bank, 95 Tex. 429,67 S.W. 79, 881. For the error indicated the judgment will be reversed.

The assignments relating to the cross-action are overruled for two reasons: First, because the cross-action was for an amount beyond the jurisdiction of the court. Gimbel v. Gomprecht, 89 Tex. 497, 35 S.W. 470. Second, the mortgage provided that upon default the mortgagee was authorized to take possession of the car and sell the same. The exercise of the right of possession by the writ of sequestration affords no ground for damages. Wedig v. San Antonio Brewing Ass'n, 25 Tex. Civ. App. 158,60 S.W. 567; Nichols v. Paine, 52 Tex. Civ. App. 87, 113 S.W. 972.

There are a number of other assignments, some of which assume a state of facts contrary to the record. In the state of the record, the error above indicated is the only matter of a reversible nature.

Reversed and remanded.

On Rehearing. In their motion for rehearing appellees earnestly insist we erred in our ruling upon the insufficiency of the verdict to support the judgment of foreclosure.

The cases cited in the motion have been carefully considered. Some of them do not involve the question here at issue, and for such reason are not in point; some are discussed, and their distinguishing features pointed out, in the Ablowich Case, 95 Tex. 429, 67 S.W. 79, 881; others have the distinguishing feature present in Railway Co. v. Henderson,86 Tex. 307, 24 S.W. 381. Under the authorities cited in the main opinion, we see no occasion to change our ruling.

Appellant has also filed a motion for rehearing, and insists that his third assignment should have been sustained also. This assignment presents no error, for the reason stated in Sowell v. Federal Reserve Bank, 268 U.S. 449, 45 S. Ct. 528, 69 L.Ed.1041.

Both motions are overruled.