ON PETITION FOR REHEARING A petition for rehearing has been filed herein. Counsel for plaintiff and appellant claim that "nowhere throughout the testimony in this case is there any evidence of any other brands than the one which the Turks lost in 1925 and its reverse, acquired in 1932"; further, that the effect of Turk's testimony is that the brand contained in plaintiff's mortgage is the one acquired in 1932; that no controversy arose during the trial of the case as to any more than two brands, and *Page 378 that hence, the jury's finding is necessarily not supported by the evidence. We discussed these matters fully in the original opinion. To clarify the matter, however, we shall, briefly, restate in a somewhat different manner the situation in the respects mentioned. The question whether or not the brand mentioned in plaintiff's mortgage is the same as the brand acquired by the Turks in 1932 clearly arose in the case, contrary to counsel's contention. In fact, it was apparently the main question in the case, for special interrogatories were submitted to the jury on that point, and they answered the interrogatories in the negative. True, Turk called the various brands, apparently including that mentioned in plaintiff's mortgage, the "wagon hammer brand," but the naming of the brand could not be conclusive in the matter. The testimony shows that the Turks owned a brand called the "wagon hammer brand" in 1923-1925. That brand was placed on the left side of the animals. They owned no brand from 1925 to 1932. In the latter year they acquired the reverse of the former brand, also called the wagon hammer brand, placed on the right side of the animals. Turk's testimony as to the brand in plaintiff's mortgage is, it is true, perhaps somewhat confusing. But the facts are clear. In question and answer 62 Turk specifically testified that the brand mentioned in plaintiff's mortgage is not his wagon hammer brand. And the further testimony appears in the record: "Q. 362. Now are any of the cattle included in the Black mortgage, branded the same as any of the cattle included in the Conway mortgage?" "A. No." In any event, a brand was mentioned in the plaintiff's mortgage; the latter was introduced in evidence by plaintiff. That spoke for itself. The brand there mentioned did not describe the place or location of the brand. Moreover, the line on the right is different from the brand acquired in 1932. Here, accordingly, was introduced into *Page 379 the case by plaintiff itself a third brand differing in the two respects mentioned from the other brands. We held that it was a question for the jury to say as to whether or not this particular brand, thus introduced into the case by the plaintiff, was the same brand as that acquired by the Turks in 1932. We think that we were correct in this holding, and when that point was determined adversely to the plaintiff, the conclusion that plaintiff has no right to the cattle in controversy here necessarily followed.
No other points need, accordingly, be discussed. We might, however, briefly state that points two and three in counsel's brief on rehearing relate mainly to the construction of the statutes mentioned in the original opinion and the application thereof in the case at bar. We discussed these statutes at length in our first opinion, and we can add very little to what we then said. We might, however, mention that counsel state that a mortgagee should not be prejudiced by the fact that the mortgagor did not happen to have a brand recorded which he claimed and intended to record later. But that is not the situation in this case. The Turks had no brand in 1930, when plaintiff's mortgage was given. The brand of 1932 had been owned by Mr. Veta, and the testimony is clear, we think, that the Turks did not only not record it, but that they did not acquire it till 1932. There was, of course, as we stated in the original opinion, nothing to hinder the Turks from mortgaging to plaintiff any cattle which they then owned, no matter with what brand they might be marked. The mortgage was perfectly good as to then existing property owned by the Turks. But that is an entirely different matter from mortgaging future-acquired property branded with a brand which the mortgagors did not then own and did not acquire until two years later, and which, prima facie at least, could not *Page 380 be held to have been intended by the parties to be included therein.
Counsel ask us to direct the trial court to enter a personal judgment in this case against the Turks. We do not think that the point is involved in the case. It will be recalled, as stated in our original opinion, that plaintiff did not ask for a personal judgment. That point, accordingly, was not an issue in the case, even though the Turks by their answer consented to a judgment against them for the amount due on plaintiff's note. As now advised, however, we can see no particular reason why, if plaintiff desires a personal judgment against them, that matter could not, upon notice, and upon amendment of the prayer of the petition, be disposed of in this case, after it is sent back to the trial court, rather than in another action.
The petition for rehearing is, accordingly, denied.
RINER and KIMBALL, JJ., concur.