Scott v. G. W. Waldrop & Co. , 1928 Tex. App. LEXIS 696 ( 1928 )

HICKMAN, C. J.

Appellee sued appellant Scott on a promissory note and for the foreclosure of a chattel mortgage lien on personal property given to secure the note. The property was taken from the possession of the appellant Scott by a writ of sequestration, but delivered back to him by the sheriff upon the execution by him, as principal, and the other appellants, as sureties, of a replevy bond. On the trial judgment was rendered for appellee against appellant Scott for the principal, interest, and attorney’s fees due on the note, with a foreclosure of the chattel mortgage lien on the personal property. The 'judgment found separately the value of each article of the sequestered property, and judgment was allowed against the sureties on the replevy bond for the total value of such property. Prom tMs judgment, Scott, the principal on the replevy bond, and his sureties thereon, have perfected an appeal.

The brief contains three propositions. The first two present that the judgment was erroneous, in that it' did not provide for the return of the property as a credit on the judgment, as provided in article 6853, R. S. 1925, and that in failing so to provide a double recovery was awarded appellee. No authorities are cited in support of these propositions. The provision of article 6853 that the defendant in a sequestration suit, who has replevied, is allowed to tender the sequestered property to the officer within 10 days after the rendition of the judgment as a credit thereon, is not required to be inserted in the judgment itself. Such recital in the judgment would be proper, but it is not essential to its validity. The right so to return the property is secured by the statute, and requires no judgment of the court for its preservation. Mills v. Hackett, 65 Tex. 580; Rahlmann v. Galveston Auto Supply Co. (Tex. Civ. App.) 238 S. W. 345; Mulligan v. McConnell Bros. (Tex. Civ. App.) 242 S. W. 512; Continental Gin Co. v. Thorndale Mercantile Co. et al. (Tex. Com. App.) 254 S. W. 939.

The third proposition in appellants’ brief complains of the failure of the court to submit an issue of fact raised by the pleadings. There is no statement of facts in the record, and we are therefore not advised whether- the issue pleaded was supported by any evidence. We must presume, in support of the court’s judgment, that the evidence did not warrant the submission of the issue to the jury. A court is not required to submit to the jury an issue of fact-having no support in' the evidence. To authorize the submission of an issue of fact to a jury, such issue must be raised by both the pleadings and the evidence. Article 2189, R. S. 1925; Jemison et al. v. Estes (Tex. Civ. App.) 231 S. W. 797; Morton Salt Co. v. Lybrand (Tex. Civ. App.) 292 S. W. 264.

None of the propositions briefed present any error in the judgment of the trial" court, and the same is therefore affirmed.