Goss v. Pilgrim

Smith, J. —The note and mortgage sued upon were executed by Goss to De "Witt to secure the purchase-money for a lot and improvements in the town of Gonzales. De Witt indorsed a note in blank, it being payable to his order, to Pilgrim. Crawford purchased the property covered by the mortgage, and hence is made a party defendant below, and he answers. Goss avers that the note was transferred after its maturity, and plead in offset two notes executed by the payee, De Witt. A trial was had, and verdict and judgment were rendered in favor of Pilgrim for the amount of his note, and the property was ordered to be sold. On motion of Goss a new trial was granted, and on the same day the following order was made by the court, viz: “ T. J. Pilgrim v. John Goss et al. Comes the plaintiff by his attorneys and remits so much of the judgment here-' tofore entered in this cause as the two notes and their interest, plead by the defendants as offsets, amount to, to wit, $315 99; and by agreement the order granting a new trial in the cause is set aside and vacated.” Goss alone brings the cause to this court by writ of error, and complains that the judgment was not in accordance with the agreement filed in the cause. There is no statement of facts or bill of exceptions in the record, and we must presume the remittitur of $315 99 and the setting aside of the order granting the new trial to have been correctly done, and in accordance with the agreement of the parties, as is recited in the order of the court. [266] It is contended that the agreement of the parties is shown hy a paper filed in the cause and copied in the transcript, purporting to he signed by Pilgrim and. the attorneys óf Goss. We cannot notice this paper, it does not appear by a statement of facts or bill of exceptions to have been brought to the attention of the court below, or that the order was made for the purpose of carrying it out. The order of the District Court may have been made according to a verbal agreement of the parties then announced to the court. This court cannot notice every paper that may be filed in the cause below, upon which- it does not appear by a statement of facts, or bill of exceptions, or otherwise, that action was taken, upon it by the court. (Duggan v. Cole, 2 Tex., 381; Castro v. Illies, 11 Tex., 39.) We are, however, of opinion that the action of the court, if not a literal compliance with, the written agreement, was substantially in conformity with it. • The court, having resorted to a different mode to effect the end desired, will not afford grounds of reversal. In this case, we will presume that the parties concurred in the action of the court verbally, if not in writing. The second assignment, that Crawford did not agree to the action of the court, in making the order complained, of, is not sustained by the record. It appears that all the defendants below were before the court and agreed to it, at least this will be the presumption, from the fact the defendants all appear to have agreed to it. If Crawford did not in fact consent to the judgment as finally rendered, that can afford Goss no grounds of. reversal. He has not joined in the writ of error, and is not complaining of the action of the court; and any error affecting him only cannot be relied upon by Goss, who appears much more concerned about the interest and welfare of Crawford than he manifests himself. Goss can easily effect his laudable desires to relieve Crawford from [267] litigious trouble and mental anxieties by simply paying off the debt for which the mortgaged property is bound in the hands of his vendee, Crawford. We believe it is no error to foreclose the mortgage in the manner and in the language used in the decree. The statute (Art. 504, O. & W. Dig.) directs that the plaintiff recover the debt, and that an order of sale do issue to the sheriff, directing him to sell the property as under execution. This is done, and that part foreclosing the vendor’s lien, if improper, may be treated as surplusage. We are not prepared to say that the judgment is excessive. We have not entered into a close computation of the amounts due on the several notes, it not being our duty, as we conceive, (Metz v. Bremond, 13 Tex., 394;) but presume the amount adjudged met with the approbation of the defendants below when they confessed or agreed to the judgment. (2 Tex., 581.) A judgment by nil elicit, or one by confession, will not be reversed where the complaining party has not been injured. (1 Tex., 78; 4 Tex., 373; 5 Tex., 262; 10 Tex., 193; 22 Tex., 87.) The judgment below is Affirmed. [268] NOTE BY THE REPORTEB. [The opinion in the following case was delivered on the 27th day of December, 1858. The record was sent to the Reporter by Robards and Jackson without any explanation, and with their report of the case, omitting the opinion of Chief Justice Wheeler, From this and the recollection of the Reporter, it may be stated that a re-hearing was granted, and the case continued eight years longer. It may not be exactly regular to print the opinion which was withheld, but it is hardly just to the memory of Chief Justice Wheeler to omit it.]