# Speer v. Allen

> Court of Appeals of Texas · January 28, 1911 · 135 S.W. 231

URL: https://www.frixlaw.com/law-library/cases/9832068

## Case

- **Full name:** Speer v. Allen.
- **Court:** Court of Appeals of Texas
- **Decided:** January 28, 1911
- **Citations:** 135 S.W. 231; 1911 Tex. App. LEXIS 899
- **Precedential status:** Published
- **Opinion:** On rehearing
- **Judges:** Talbot
- **Cited by:** 1 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9832068

## Opinion text

On Motion for Rehearing.
In our original opinion we held that the evidence was sufficient to clearly show that at the time appellant’s mortgage was executed, both the appellant and appellee contemplated the acquisition by appellee of household goods other than those particularly described in said mortgage, which they intended should become subject to the lien of said mortgage under the general property description contained therein; that, therefore, the general description in the mortgage was sufficient to include any property of the kind referred to in said mortgage; that the jury, under the evidence, would have been warranted in finding that the property described in the affidavit, the basis of this suit, was covered by said mortgage and a lien thereby fixed upon said property, although the same was not specifically described in the mortgage; and that the trial court erred in charging the jury to the contrary.
It is insisted 'by counsel for appellee in her motion for a rehearing that we erred in so holding for the reason, among others, that we held differently in another case between the appellant and appellee, appealed to this court, in which the evidence was the same upon' the question at issue and a construction of said mortgage involved. The case referred to is R. M. Speer v. Eva Allen, 117 S. W. 1199 . This is an incorrect view of our rulings. The case of R. M. Speer v. Eva Allen, supra, was tried in the lower court without the intervention of a jury, and the trial judge, after hearing tbe evidence, held, as shown by his findings, which were adopted by this court, “that the account sued on by the plaintiff (Speer) in the sum of $221.75, and the property set out and described therein, are not included and covered by the mortgage.” In affirming the judgment of that court we said: “The trial court filed his conclusions of fact and law, in which we find no error, and the same are adopted as the findings of this court. The appellant’s assignments of error relate to errors in said findings, but we are of the opinion that said findings are fully justified by the evidence.” In this we simply held that the evidence was sufficient to support the lower court’s findings. The decision does not go to the extent of holding that the evidence would not have warranted a finding that the property referred to in the court’s finding above set out was not covered by the mortgage. It-often happens that the evidence on a particular issue is of such a character as to sustain a finding either way upon it. In the case at bar the court’s charge, which we hold should not have been given, withdrew the issue of fact made by the evidence as to whether or not the property described in the affidavit upon which this suit is predicated *235 was included in appellant’s mortgage, and instructed them, as a matter of law, that said mortgage covered only the goods specifically described in the mortgage. In this we hold the court erred.
If it be contended that the decision in the case of R. M. Speer v. Eva Allen, supra, constituted a bar to a further consideration of the question, there is no merit whatever in such contention. The cases are founded upon entirely different causes of action, and the statement of facts in the present case fails to show that the evidence was the same in both cases, and we do not judicially know that it was the same. Nor are we required, for the purpose of ascertaining whether or not such be the fact, to compare the statement of facts in the case now before us with the statement of facts in the former case; and, if we should make such comparison and find the evidence to be the same, we would not be authorized to say such was the case, and base a conclusion upon the information so obtained. But even if this was a second appeal of the case of R. M. Speer v. Eva Allen, supra, and the evidence the same as on the former appeal, the decision of this court on the first appeal would not be conclusive of the question then decided. The question as to whether the court will reconsider upon a second appeal what has formerly been decided in the same case must always be addressed to the discretion of the court and determined according to the particular circumstances of the case. Kempner v. Huddleston, 90 Tex. 182 , 37 S. W. 1066 ; Layton v. Hall, 25 Tex. 204 . It may be further stated that the record in the present case does not show that a determination of the question as to whether or not the particular property described in the affidavit upon which this suit is based was involved in the suit of B. M. Speer v. Eva Allen, to which we have referred.
The motion for rehearing is overruled.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9832068. Public record. Not legal advice.