Byers v. Thacker , 42 Tex. Civ. App. 492 ( 1906 )

This was a bill brought by appellee Thacker and his children praying that C. F. Byers and the other defendants be temporarily enjoined from proceeding with an advertisement or sale of certain land in connection with a deed of trust, and that the deed of trust be declared void and of no effect and said injunction be made perpetual on final hearing. The petition contained as exhibits a copy of the alleged notice of trustee's sale purporting to be signed by C. F. Byers, substitute trustee, also the deed of trust alleged and upon which the notice was according to its recitals based.

The temporary injunction issued and upon final hearing the judge directed the jury to return a verdict for the plaintiffs, and upon this verdict decree was entered.

Whether or not the peremptory instruction can be sustained depends upon whether or not the above exhibits were made evidence in the case. There is no bill of exceptions in the record showing objections made to any testimony introduced, hence any documents which were allowed to be introduced without proof of their execution, were competent testimony of what they indicated.

The propositions contended for in appellants' brief are:

1. Appellees having pleaded the execution of a deed of trust by R. J. Thacker to W. L. Sherman as trustee . . . it was material for appellees to prove the execution of such deed of trust and note and having failed to introduce evidence thereof the trial court was not justified in instructing a verdict for appellees.

2. Appellees having pleaded that Chas. F. Byers and the other appellants had procured a notice of sale to issue to plaintiffs and had caused said land to be advertised for sale in "The Press," an alleged newspaper published in Houston, Texas, and had given notice to appellees that they would sell the land in question on the 6th day of December, 1904, and were threatening to sell said lands and make deed thereto, it devolved on appellees to sustain said allegations by offering evidence tending to prove such acts and in the absence of any proof thereto, the trial court erred in the instruction.

3. Plaintiffs having failed to sustain by any evidence their allegations that appellant had given notice of the sale of said property, had advertised same for sale, or were threatened to sell same, the court should have instructed the jury to find for appellants.

The above are all the reasons assigned for setting aside the decree.

The statement of facts reads: "Be it remembered that this cause being upon trial before the court and jury, the following evidence was submitted to the jury. The pleadings of the plaintiffs and defendant having been read to the jury, the plaintiff introduced in evidence the following:" etc. Otherwise the notice of sale is not referred to in the statement of facts.

If that part of the record made for the purpose of exhibiting the evidence, is susceptible of an interpretation which will support the judgment that interpretation ought to be given it. (Elliott App. Proc., sec. 172.) Our construction of the part of the statement of facts quoted is that the pleadings went to the jury, in connection with other evidence, and that the documents annexed to the petition as exhibits were before the jury as evidence. Else why should the fact that the pleadings were read to the jury find mention in the statement of facts. If there is an uncertainty about this matter it should be resolved in favor of the judgment. (See Thurman v. Blankenship Blake Co.,79 Tex. 178.)

As the record indicates that instruments which evidenced the matters of which appellants say there was no proof, were submitted to the jury the judgment will be affirmed.

Affirmed.

Writ of error refused.