D. G. Smith v. Thomas M. Warren, 60 Tex. 462

Watts, J. Com. App. Upon the trial in the court below, the real issue was as to whether or not Makemson & Posey owned an interest in the judgment of Bybee v. Warren, at the time of the sheriff’s sale at which Makemson purchased the land. That judgment was recovered in April, 1877. In response to special issues the jury found that about 1877, Bybee did transfer or assign an interest in the notes to Makemson & Posey. And after that agreement Posey wrote the transfer of the judgment from Bybee to Smallwood. And further, that Makemson & Posey never owned that judgment.

It is the settled rule of practice that where a verdict is in response to special issues alone, the court cannot look beyond the finding to any fact apparent in the record in aid of the judgment. Ledyard v. Brown, 27 Tex., 393. In such case the verdict is the basis of the judgment, which must be sustained by the finding. Here the finding upon the vital issue, though apparently conflicting, is not in fact necessarily so.

That is, it is not impossible nor even improbable that an interest in the notes might have been transferred to Makemson & Posey about 1877, and still that they might not have owned the judgment, or any interest therein, rendered April, 1877. True, if the interest in the notes had been assigned to them by Bybee after the judgment was rendered, that would have carried with it an interest in the judgment. Gaines et al. v. Exchange Bank, etc., Law Reporter, vol. 1, No. 6, p. 479.

So, also, if they owned an interest in the notes at the time of the rendition of the judgment, they would own a like interest in the judgment. While the jury find that an assignment of an interest in the notes was made to them, the other finding, however, negatives the idea that they had such interest at the time of the rendition of the judgment or subsequent thereto. For anything appearing by the finding of the jury, it might be that Makemson & Posey had disposed of that interest in the notes before the rendition of the judgment in favor of Bybee.

That assumption is in harmony with and reconciles the several findings of the jury, which otherwise would be inconsistent with each other. Then, construing the several findings together, as consistent with each other, it results that Makemson & Posey would have no right to control the execution, in opposition to the wishes and directions of Hunt, the legal owner of the judgment. And that it was error to render judgment against appellant upon that verdict.

While the court would have the power to reverse the judgment, and here render such judgment as should have been rendered by the court below upon the findings, still, from the condition of the record, it is suggested that the judgment ought to be reversed and the cause remanded. ¡Reversed and remanded. [Opinion adopted December 4, 1883.]