French v. Meyer Kiser

HIGGINS, J. Appellees sued upon a series of notes executed by appellant and a mortgage upon an automobile to secure their payment. A writ of sequestration was sued out and the car seized. Appellant answered by a general denial and a special defense not necessary to state. He also set up á cross-action for damages in the sum of $1,250 for the alleged wrongful and malicious issuance of the writ. . In response to a peremptory instruction, a general verdict in favor of the plaintiffs was returned, and judgment in their favor rendered for $686.42, and foreclosure of the mortgage lien upon the automobile. The verdict made no finding with respect to the mortgage. A general denial having been filed, every fact pleaded by the plaintiff was put in issue. The verdict was /therefore insufficient to support the judgment of foreclosure. May v. Taylor, 22 Tex. 349; Bledsoe v. Wills, 22 Tex. 650; Preston v. Breedlove, 45 Tex. 47; Handel v. Elliott, 60 Tex. 147; Ablowich v. Bank, 95 Tex. 429, 67 S. W. 79, 881. For the error indicated the judgment will be reversed. The assignments relating to the cross-action are overruled for two reasons: First, because the cross-action was for an amount beyqnd the jurisdiction of the court. Gimbel v. Gomprecht, 89 Tex. 497, 35 S. W. 470. Second, the mortgage provided that upon default the mortgagee was authorized to take possession of the car and sell the same. The exercise of the right of possession by the writ of sequestration affords 'no ground for damages. Wedig v. San Antonio Brewing Ass’n, 25 Tex. Civ. App. 158, 60 S. W. 567; Nichols v. Paine, 52 Tex. Civ. App. 87, 113 S. W. 972. There are a number of other assignments, some of -which assume a state of facts contrary to the record. In the state of the record, the error above indicated is the only matter of a reversible nature. Reversed and remanded.