Opinion
July 1, 1911.
Appeal from District Court, Freestone County; H. B. Daviss, Judge.
Action by the First State Bank of Teague against J. M. Harris and another. Judgment for defendants for damages, and plaintiff appeals. Reversed and remanded.
D. T. Garth, for appellant.
Appellant sued appellee to recover the possession of certain premises, for rent due thereon, and caused a writ of sequestration to be issued and levied on same. Defendant answered by general demurrer, general denial, and reconvened for damages for the wrongful suing out of the sequestration. A trial resulted in favor of defendants for $450 damages, and appellant prosecutes this appeal.
Complaint is made that the verdict and judgment do not dispose of all the issues in controversy, and therefore a new trial should have been granted. This complaint, we think well founded.
The suit was for possession of certain property and to recover certain rents due. The verdict of the jury was, "We, the jury, find for defendant J. M. Harris and wife, $450.00, actual damages in this case," which was signed by the foreman. The judgment simply follows the verdict decreeing a recovery for said damages, but in no way disposes of the issue of possession or rents claimed by plaintiff. It only disposes of the issue of actual damages presented by defendants, and makes no final disposition of the other two. It is true the court instructed the jury that plaintiff was not entitled to recover for the rent claimed, but this cannot be considered in connection with the verdict and judgment to determine what was the finding of the jury in this case. The court's instruction was to govern the jury in their finding, and the verdict alone is to be looked to to determine what they decided. If a general verdict had been rendered it would have been sufficient, but it does not do that, but only deals with defendant's claim for damages. Railway Co. v. Magee, 132 S.W. 901; Williams Co. v. Smith, 98 S.W. 916.
There was no error in admitting the deed from appellant to George D. Hunter; the same having been proven up under the common-law rule, there was no necessity for it to be filed before the beginning of the trial as prescribed by statute in such cases.
For the error pointed out, the judgment is reversed and cause remanded.