Feinberg v. Frank , 268 S.W. 494 ( 1924 )

In rendering judgment upon special findings it is the duty of the court to conform the same to the findings upon the material issues in the case. Findings upon immaterial issues may be disregarded. There is no warrant for the submission of an issue not raised by the pleadings. A finding upon an issue which is not raised by the pleadings is immaterial, and should be disregarded in the rendition of the judgment. Krenz v. Strohmeir (Tex.Civ.App.) 177 S.W. 178 at page 181; National, etc., v. Reveire (Tex.Civ.App.) 209 S.W. 799; Kelley v. Ward, 94 Tex. 289.

As was said in Krenz v. Strohmeir:

"Where a general charge is given it is error to submit an issue not raised by the pleadings, upon which the jury might have based their verdict, for the reason that it cannot be known that they did not do so. But where a case is submitted on special issues, it does not matter that an issue is submitted which is not raised by the pleadings, as the court will base its judgment on the findings of the jury on the material issues. The court might have submitted to the jury the issue as to whether or not George Washington cut the cherry tree, and they might have found that he did not, but this would not have been a ground for setting aside the judgment if it followed the verdict as to the material issues raised by the pleadings."

The pleadings in this case presented no issue with respect to any right of recovery by Frank of any part of the profits of the Government Truck Sales Company. They were insufficient to support a recovery of any of the profits of that company.

The findings of the jury with respect to the profits of the Government Truck Sales Company were therefore immaterial, and the court properly disregarded the same in the amended judgment. Its action in so doing is not in conflict with the rule that the trial court cannot render a judgment contrary to the verdict.

For the reason indicated, the writer concurs in overruling the cross-assignments of Frank.