Brinegar v. Henderson Hardware Co.

McCLENDON, Chief Justice. Appellee has moved to dismiss the appeal on the ground that the case has become moot since the appeal was taken. The suit, which originated in the justice court, was to recover a balance owing upon a promissory note and to foreclose a chattel mortgage securing it. An appeal to the county court resulted in a judgment for appellee for the claimed amount sued for and foreclosing the chattel mortgage. The appeal to this court is upon cost bond without supersedeas; and the motion to dismiss is predicated upon the record showing that the only controversy in the case was whether certain chattels included in the mortgage had been excepted therefrom by agreement of the parties; and upon showing aliunde the record that all this property had been sold under the foreclosure subsequently to the appeal. Manifestly, the ground upon which the motion rests is untenable. The point is thus concisely stated in 3 Tex.Jur., p. 1333, § 935: “A judgment may be enforced during pendency of appeal, unless it be superseded by such a bond as the law requires. Judgment having been enforced, the party who has taken the benefit thereof will, in case of reversal by the appellate .court, be required to restore what he has received by enforcing his judgment. The current authority shows that a party obtaining, through a judgment, before' reversal, any advantage or benefit, must return to the other party after reversal that which he may have obtained.” See, also, Texas Trunk Ry. Co. v. Jackson, 85 Tex. 605, 22 S.W. 1030; Peticolas v. Carpenter, 53 Tex. 23. In passing upon the motion, it became necessary for us to examine the record and appellant’s brief. The latter urges only one point, namely, that the court was without jurisdiction, because the value of the mortgaged property was nowhere alleged, either in the justice or county court; nor was there any proof of such value. This is conclusively shown by the record, and [741] is admitted in the statement of facts agreed to by both parties, from which we quote: “No pleading or proof was offered as to the value of any of the chattels described in the mortgage, and on which the plaintiff sought to foreclose its mortgage lien.” The justice court is without jurisdiction to foreclose a contract lien upon property, the value of which exceeds the jurisdictional limitations of the court. Cotulla v. Goggan, 77 Tex. 32, 13 S.W. 742; 11 Tex.Jur. p. 759, § 41. Pleadings which do not allege such value are fatally defective and will not support a judgment for plaintiff. Leifeste v. Stokes (Tex.Civ.App.) 45 S.W.(2d) 1006. The trial court’s judgment is reversed, and the cause remanded.