Brown v. Mitchell

1 Posey 373, 1881 Tex. LEXIS 185

• Court: Texas Commission of Appeals
• Decided: January 25, 1881
• Docket: Case No. 3332
• Status: Published

Opinion

A. S. Walker, J.

The errors are discussed in groups as follows, by counsel for appellants, which are sufficiently indicated by the assignment of errors:

1. That the defendant Mitchell, having filed only a general denial, no evidence was admissible in his favor to defeat a recovery .against him.

2. That there was no evidence under the intervenor’s allegation of fraud to warrant the verdict and judgment.

3. That intervenor’s plea of account, settlement and discharge of the note is a nullity, and interposes no defense.

4. That great injustice was done plaintiff by first admitting in evidence the declarations of Herndon against the plaintiff and then withdrawing them from the jury.

In the proceedings no very distinct separation was made between the rights of the defendant Mitchell, and the intervenor Preston.

The object of Preston in making himself a party was to secure his own rights in the property involved in the litigation between the original parties. To make defense of his own rights he could plead and prove anything which he could, which wpuld be a defense to the plaintiff’s case, so far as it might affect his (intervenor’s) own claims. He did not become the protector of Mitchell. Nor could Mitchell derive any aid in his own case beyond what might be brought into it, and supporting his own defense as made in his answer.

If Mitchell for any reason could not,- or would not, defend the action of the plaintiff, then plaintiff became entitled to all the consequences of Mitchell’s action or non-action. If Mitchell’s pleadings did not admit of evidence of payment or satisfaction of. the note, he could not defend nor receive the benefit of such defense, based on payment made by intervenor. Brown, on producing his note and mortgage declared on, in the condition of Mitchell’s pleadings, was as against him as much entitled to judgment as if Mitchell had confessed judgment.

But while such would result as to Mitchell’s case, the rights of Preston could not be injured by Mitchell’s conduct of his own defense.

The pleadings of Preston, as originally filed, and the general amendment, not excepted to, that “Mitchell had, November 1, 1874, fully accounted with plaintiff, and settled and fully discharged the note on which plaintiff brings this suit, to the full satisfaction of plaintiff, and any cause of action, or right or lien that may ever have existed between plaintiff and defendant, by and under said note,” were sufficient to admit the testimony offered by him, showing the satisfaction as to the note and lien to which his testimony was directed. Much o£ the testimony was in the nature of facts in estoppel from Herndon’s acts and declarations. The declarations, which were subsequently withdrawn, were particularly damaging to the plaintiff’s case, had they not been withdrawn.

[Opinion delivered January 25, 1881.]

There was evidence on which the jury may have found for Preston as against the enforcement of Brown’s lien against the property mortgaged to him.

The court, on appeal, cannot ordinarily revise the act of the court below, in admitting improper testimony, when the court below withdrew the evidence from the jury. If injury were shown to have resulted, it might be considered. But an error, corrected by the judge below, will not be presumed to have been injurious.

Inasmuch as an error in the judgment as to one defendant is ground of reversal as to the entire judgment, and the more so when the error is in favor of the principal or only proper defendant, the erroneous finding against plaintiff on his note on Mitchell will require a reversal. Robinson v. Schmidt, 48 Tex., 19; Acklin v. Paschal, 48 Tex., 177.

We hold:

1. That intervenor’s plea was sufficient to maintain his • action against Brown.

2. That there is not sufficient error in the finding of the jury, as between Brown and Preston, to require a reversal.

3. That there is not shown any damage resulting to the plaintiff from the erroneous admission of Herndon’s declarations, afterwards withdrawn, to require a reversal. But

4. Because of the erroneous verdict and judgment against Brown, as to Mitchell, the principal defendant, the case should be reversed.

Reversed and Remanded.