Plains Cotton Cooperative Ass'n v. Panhandle Mutual Hail Ass'n , 389 S.W.2d 316 ( 1965 )

GRISSOM, Chief Justice.

Panhandle Mutual Hail Association sued Plains Cotton Cooperative Association for conversion of cotton, judgment was rendered for the Hail Association and the Cotton Cooperative has appealed.

To establish conversion of the cotton, appellee had to prove that it had a mortgage lien on the cotton and that appellant had constructive notice of the lien. It attempted to make such proof only by introduction of a certified copy of the chattel mortgage. Its introduction was timely and properly objected to because the certified copy of the mortgage had not been filed in the papers of the cause before announcing ready for trial. The court erred in overruling said objection and admitting the certified copy. Article 5493. Thomas W. Blake Lumber Company v. Guaranty State Bank, Tex.Civ.App., 290 S.W. 187; Safe Cabinet Company v. Southwestern Life Insurance Company, Tex.Civ.App., 16 S.W.2d 940.

The court overruled said objection and admitted the certified copy of the mortgage upon the theory, which appellee here insists is correct, that same was admissible under the provisions of Article 3731a. If same were otherwise admissible under Article 3731a, nevertheless, it was not admissible because section 3 of said article, which requires delivery of a copy thereof to the adverse party before the trial, was not complied with. The cases cited by appellee do not sustain its contention. The judgment is reversed and the cause is remanded.