Jaco v. W. A. Nash Co. , 269 S.W. 1089 ( 1925 )

Appellees, a partnership, filed this suit against Willie Vinson and Thomas Bennett, seeking judgment on an account of $501.77 and to foreclose a mortgage lien on one-half of all the cotton and cotton seed raised by said defendants on the W. J. Jaco farm in Kaufman county for the year 1920, and joined in the suit appellants W. J. Jaco and A. Miles, alleging that they had converted five bales of the cotton raised by Vinson and Bennett, which was of the value of more than plaintiffs' debt. Appellees asked for judgment for their debt against Vinson and Bennett, together with a foreclosure of their mortgage lien upon all the cotton and cotton seed raised by said defendants on the Jaco farm in 1920, and asked for judgment against appellants Jaco and Miles for conversion of the five bales of cotton.

The defendants Vinson and Bennett made no appearance. The appellants Jaco and Miles filed general demurrer and specially excepted to appellees' petition because it did not show that the county court had jurisdiction of the amount in controversy. Appellant Jaco, for special answer, alleged that he as landlord had furnished the tenants supplies and that he had a landlord's lien on the crops raised by Vinson and Bennett to secure him, which was prior to any claim of appellees. Appellant Miles filed, in addition to the demurrers above, a general denial and adopted the answer of appellant Jaco.

The cause was submitted to the jury on special issues. By their answers to the special issue the jury found that appellees were entitled to a foreclosure of their mortgage on all of the cotton and cotton seed raised by Vinson and Bennett on the Jaco farm in 1920, and that one-half of the crops so raised belonged to Vinson and Bennett and one-half to appellant Jaco, and that Vinson and Bennett raised nine bales of cotton on said farm.

Special issue No. 6 submitted was:

"What was the reasonable market value of the one-half of the cotton and cotton seed raised by Vinson and Bennett and belonging to them at the time the cotton was sold?"

To which the jury answered: "Cotton from 17 cents to 22 cents per pound, cotton seed from $40 to $50 per ton," and the Jury found that Jaco had no lien on the crops. On said findings the trial court entered judgment for appellees against Vinson and Bennett for the sum of $501.77, with interest from October 21, 1920, together with a foreclosure of their mortgage lien upon 4 1/2 bales of cotton, and judgment for appellees against W. J. Jaco and A. Miles, jointly and severally, for $382.04, with interest from October 21, 1920; the judgment reciting:

"This being the value of the four bales of cotton converted by said defendants and appropriated to their own use and benefit, on which plaintiff had a mortgage."

W. J. Jaco and A. Miles filed motions for new trial, which were overruled, and they have appealed.

Appellants assign error on the refusal of the trial court to sustain their general and special exception because the pleadings of appellees did not allege in any way the value of the mortgaged crops on which they sought foreclosure. We sustain this assignment. Appellees' pleadings do not in any way suggest the value of the property on which they seek to foreclose their mortgage lien. They did not allege how many bales of cotton, nor the amount of cotton seed raised by Vinson and Bennett, nor the value there of. They alleged they had a mortgage on all the cotton and cotton seed raised by said parties for the year 1920, and the jury found they were entitled to have said mortgage foreclosed. The county court is a court of limited jurisdiction, and the pleadings in said court must allege the value of the property on which the mortgage is sought to be foreclosed to give the county court jurisdiction. If the value of the property on which the mortgage is sought to be foreclosed is in excess of $1,000, the county court would have no jurisdiction, and, in the absence of an allegation with reference to the value of the mortgaged property on which the lien is sought to be foreclosed, the county court is not authorized to render judgment. Butts v. Hudgins (Tex.Civ.App.) 255 S.W. 762; McKee v. LeFors (Tex.Civ.App.)253 S.W. 598; People's Ice Co. v. Phariss (Tex.Civ.App.) 203 S.W. 66; Davis v. First Nat. Bank (Tex.Civ.App.) 248 S.W. 119; Huff v. McDonald (Tex.Civ.App.) 239 S.W. 365; Stricklin v. Arrington Carter (Tex.Civ.App.) 141 S.W. 189; Tant v. Baldwin Piano Co. (Tex.Civ.App.)217 S.W. 239.

Appellants complain of the trial court rendering judgment against them for $382.04 because same is not supported either by the findings of the jury or the testimony, and because the jury failed to find the value of the cotton Vinson and Bennett raised that was converted by appellants. We sustain this assignment. There was no evidence offered showing the weight of the bales of cotton, nor the amount of cotton seed raised. The court asked the jury to find the reasonable market value of one-half of the cotton and cotton seed raised by Vinson and Bennett. The jury did not find said market value, but answered that the cotton was worth from 17 to 22 cents per pound and the cotton seed from $40 to $50 per ton. The answer of the jury does not furnish a sufficient basis on which the trial court could render a judgment. The jury found the number of bales raised, but did not find the weight thereof, neither did they find the weight of the cotton seed, and there was no evidence offered on either of these questions. Where an issue is submitted to the jury and they fail to answer, the trial court cannot find on said issue. Lakewood Heights Co. v. McCuistion (Tex.Civ.App.) 226 S.W. 1109 (writ refused); Bargna v. Bargna (Tex.Civ.App.) 127 S.W. 1156; (error dismissed for want of jurisdiction); Dato v. Geo. W. Armstrong Co. (Tex.Com.App.) 260 S.W. 1024; Benton v. Jones (Tex.Civ.App.) 220 S.W. 193; Garlitz v. Runnels County Nat. Bank (Tex.Civ.App.) 152 S.W. 1151; Cisco Oil Mill v. Van Geem (Tex.Civ.App.) 166 S.W. 439; Bloxham v. Wallace (Tex.Civ.App.)259 S.W. 1001.

We do not pass on the question as to the sufficiency of appellees' pleadings to recover judgment against appellant Miles for the conversion of cotton purchased by the partnership of which he was a member, since this question can and probably will be cured by amended pleadings before the case is tried again.

For the errors herein stated, the judgment of the trial court is reversed and the cause remanded.