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44 Tex. 623

Mussina v. Shepherd

Texas Supreme Court

Decided July 1, 1876

Texas Supreme Court · decided 1876-07-01

Tried below before the Hon. James Masterson. This suit was originally commenced by George Goldthwaite, as trustee, against the Houston City Mills Manufacturing Company, to foreclose a deed of trust given by said company upon its property and franchises, to secure the payment of certain bonds executed by said company. The company was served with process to answer the suit of said Goldthwaite, but made no appearance or defense.

Cited by 2 later decisions — most recently February 1916

2 state decisions

Good law ✅— No negative treatment on recordhow we know

Decided 1876-07-01

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Ireland, Associate Justice.

¶1From the length of time *627this case has been before this court it is to be regretted that it is now found to be in a condition that precludes us from deciding the case on the merits.

¶2The jury were told to ascertain the amounts advanced by the respective parties. They found all the issues, as far as they went, in favor of the plaintiffs. There is, however, nothing in the verdict from which the court could determine what amount plaintiffs had advanced to defendant on the bonds or otherwise. The court, however, treating the auditor’s report, which had not been impeached, as a part of the record, and in evidence, proceeded to gather from it the amounts due the parties, and entered a decree accordingly. If there had been no other parties before the court but plaintiffs and the co-defendant, and there had been a default, as in this case, the demands being liquidated and evidenced by writings, we probably would not have thought it necessary to disturb the judgment. Here, however, there was a jury and other parties claiming interests, and the verdict should have been such as to enable the court to see what amount was due to each party. The auditor’s report could not supply that omission. (Whitehead v. Perie, 15 Tex., 11.)

¶3It would be a useless consumption of time, besides embarrassing in the future, to discuss questions upon pleadings without a full statement of facts. We will merely remark that it does not appear from the record before us that the equities of the case were not reached by the judgment rendered in the court below ; but we leave the questions open for future presentation. The record is needlessly incumbered with papers that are of no practical use. For the defect in the verdict the judgment is reversed and the cause remanded.

¶4Reversed and remanded.

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