Mussina v. Shepherd

44 Tex. 623

• Court: Texas Supreme Court
• Decided: July 1, 1876
• Status: Published

Opinion

Ireland, Associate Justice.

From the length of time this 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.

The 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.)

It 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.

Reversed and remanded.