
    Hipp v. Huchett.
    In an action on a mortgage, a judgment that the plaintiff recover Ms debt, interest, and costs, that tho mortgage be foreclosed, and that the property be sold by execution under the terms of tho statute, is final.
    In a case where the statute prescribes tho specific relief which shall be granted, a general domnrror will not lie toa petition which prays specifically for different relief and does not contain a general prayer. *
    The first and second applications for a continuance must be determined by the certain and definite rule prescribed by tho statute; but a subsequent application is, as a general rule, addressed to the discretion of tho court. There niay, however, be circumstances under which a refusal to grant a continuance on such subsequent application would operate such flagrant injustice as to induce its reversal (Note 5.)
    
      Itseems that in some cases relief will bo graufed different from and even inconsistent with the specific relief prayed for, wheve there is a prayer for general relief.
    Whore a party sues to foreclose a mortgage which contains a power to sell on so many days* notice, tho judgment in favor of the plaintiffshould be rendered in pursuance of the provisions of the one hundred and nineteenth section of tho act to regulate proceedings in the District Courts, without regard to tho length of the notice of sale, as stipulated in the mortgage.
    Where the statute proscribes tho specific relief which shall bo granted, it is the duty of the court, to rerider their judgment or decree accordingly, without regard to the propriety or impropriety of the prayer for relief, and whether the petition contain a general prayer or not.
    Where an instrument is signed by tho only party on whom it purports to impose any obligation, it is sufficient, although it. be drawn with reference to a party of the first part and a party of tho second part.
    Appeal from Guadalupe.
    
      Vanda-lip 8f Gordon, for appellant.
    
      NeiU, for appellee.
   Hempiiilu, Cu. J.

This suit was instituted for the foreclosure of a mortgage to secure a debt owing by the appellant to the appellee.

: Tlie instrument in which the hypothecation, among other matters, is found authorizes the appellee, who was plaintiff in the court below, on failure of payment by the appellant, the defendant below,’to expose, after twenty clays’ notice, the property mortgaged to sale at public auction.

The plaintiff prayed for a foreclosure of the mortgage, and that there might be a sale of so much of the mortgaged property as would satisfy his just demands, after twenty days’ notice, according to the’ express agreement of the contract.

The judgment was rendered insubstantial compliance with the 119th section of the statute to regulate proceedings in the District Courts, (Actsof 1846, 394,) viz, that (he plaintiff should recover his debt, interest, and costs; that the mortgage he foreclosed, and the mortgaged premises sold by execution, under the terms of tlie statute, and if insufficient to satisfy tlie judgment, that execution issue for such deficiency, as provided by the statute.

There were errors assigned upon which a reversal of tlie jndgment is sought :

1st. Tlie overruling of tlie defendant’s general exception to the petition.

2d. Tlie judgment for tlie plaintiff on the pleadings and vouchers submitted to them.

3d. The refusal of the court to grant a continuance on the affidavit made by the defendant.

4th. Tiie want of a final judgment, and for other errors apparent upon the record.

These assignments will be briefly examined, but not in the order of their arr-mgemeni.

Tiié last ground for reversal, the wans of a final judgment, will he first examined, as upon its determination will depend our jurisdiction over the cau-e.

it appears to be altogether without foundation. All the matters in controversy were concluded by tlie judgment; nothing is left open for further adjudication. No action is contemplated by the statute on the return by the sher-' iff of his acts under the order for sale or of the execution; and were such the practice or tlie law, yet a decree of foreclosure and sale is regarded as final upon the merits, and further proceedings are regarded but as inodes of executing the decree. (13 Pet. R., 15; 4 How. U. S. R., 503; 6 How. U. S. R., 204.)

• Tlie demurrer was properly overruled, the petition being legally sufficient to support the action ; nor was there any error — at least none such as is re-visahle by an appellate court — -in refusing the application for a continuance.

The suit was commenced in 1840, to the knowledge of the defendant, though, the first service being set aside, he did not legally become a party to the suit until 1847.

The cause was continued at the instance of the defendant at the Pall Term, in 1847, and at the Spring Term, 1S4S ; and the rule obtained by the defendant iit the Pail Term, 1848, against the plaintiff, to secure costs, had the effect of ■operating a further continuance.

The litigation had, by. the continuances and other acts of the defendant, become quite protracted, and there was no evidence that he was then better prepared for trial than at the commencement of the suit.

Applications for continuances have been held -by the courts in some of the States to be addressed to the discretion of the court, and their action on such applications is not the subject of revision. This doctrine lias hut a partial sanction in our decisions. Por the first and second applications the statute has prescribed sufficiently certain and definite rules to guide judicial action, and these can no more be disregarded than other positive and ascertained rules of law; and the rulings of the courts upon them are the proper subjects of review. .(Hipp v. Bissell, 3 Tex. R., 18.) But the Legislature has not defined the requisites of a third application ; and we may well hold, as a general rule, that it is addressed to the discretion of the court, to be guided in its judicious exercise by tlie nature of the case, the circumstances under which the application is made, and the object to he attained, viz, the fair as well as speedy trial of the cause. (Harp. R., 111.)

There might, perhaps, bo circumstances under which ,a refusal to grant a continuance would, even on a third application, operate such flagrant injustice as to induce its reversal by a superintending tribunal; but "they would rarely arise, and are not to be found in this case.

The objection that the judgment is not in conformity with the pleadings and the evidence is the only important one in the cause, and will not be considered.

There appears to be no error in the amount. The plaintiff admits that he had received $300. This would leave $200 still due; and the interest is calculated from a period which is favorable to the defendant, viz, the date at which the last installment should have been discharged.

The question as to the character and quality of the relief which could be granted on the prayer and allegations of the petition is more important, and not without difficulty.

It will he perceived that the judgment does not conform to the prayer of the petition,.but'follows the statute; and the question arises whether this is erroneous. ■

The rules on the subject of relief to be prayed for and granted are found in the 6th section of the statute to regelate tire .proceedings in the District Courts, (Acts of 1S46,305,) and section 7 of the act to organize, &c., the District Courts. (Acts 1840, 202.) By the first the plaintiff is required to make a full statement of the relief he requires of tire court; and by tire second the court is invested with all powers necessary to afford such appropriate relief as may be prayed for, and is also empowered to so frame the judgments of the court as to afford all the relief which may be required by the nature of the case and is grautable hy courts of law or equity.

It is impossible that the courts, by this last provision, may bo invested with more ample authority to afford relief than could be obtained under the prayer for general relief in courts of eqnity.

This prayer is, however, deemed-sufficient to secure such decree to the plaintiff as lie is entitled to under the circumstances of his case. (Story Eq. Pl., 40, 41; 1 Danl. Chan. Prae., 480; 2 Atk. R., 3; 3 Atk. R., 132.)

And it seems that in some eases relief will be granted different from the specific prayer, but consistent with the case made by the hill. (13 Ves. R., 919; 2 Sch. & Lef. R., 721.)

The relief, though different from that particularly prayed for, is not to be inconsistent with it; though, under extraordinary circumstances, the court has decreed in direct contradiction to the specific prayer of the complainant. (1 Cox. R., 581; 1 Danl. Ch. Prac., 481.)

In the oases above referred to there was, in addition to the specific prayer, one for general relief; and I leave seen no case in which there was hut a specific prayer that other and further relief was granted, or that different and inconsistent relief was extended and the specific prayer disregarded.

To tills there is an exception, under some circumstances, in cases of charities, in which the court will give the proper directions, without any regard to the .propriety or impropriety in the prayer of the information. (I Atk. R., 355.)

It will not bo necessary to the decision of this cause to define with precision tlie limits of the authority which is vested by statute in the courts to grant the relief required by the nature of the case, or whether' the power be' identical with or more ample than Unit possessed under the common law by courts of law and eqnity; nor is it intended that in ordinary cases the rules of correct practice as to the request and grant of relief should'he relaxed.

The statute requires the petitioner to make a full statement of the nature of the relief lie desires, and the decree should be founded on the prayer of his petition; and it cannot bo permitted, ordinarily, that he should receive further relief without a general prayer for that purpose, or that the specific prai'er should bo disregarded and a different, inconsistent relief he extended.

Note 5. — If tho terms of the statute are complied with on tho first and second applications, tju» court can exorcise no discretionary power; tho continuance must be granted. (Prewitt v. Everett, 10 T., 283; McMahan v. Busby, 20 T., 191.) Tho statute makes no provision fora third continuance, mid whether or not it shall be granted must rest in the sound discretion of the court. It would require a strong ease-to warrant (he control of that discretion by the AppeJIate Court. (Green v. Crow, 17 T., 180; Burrill v. The State, 18 T., 713; Brooks v. Howard, 30 T., 278.)

But in (ho class of oases in which the judgment before the court is ranked the law lias 3o'.-scribed definitely the judgment that . hall he rendered, if in favor of the plaintiff, who should have [¡rayed generally for such judgment iis ho may bo entitled to under the law, or for the specific judgment detailed in 1 lie statute.

But although this has not been done in this case, yet we are of opinion that the judgment, awarded in positive and precise terms-by the law, cannot he refused.

The plaintiff might, under the terms of the agreement, have proceeded without the aid of the court to expose the property hypothecated to sale; hut having availed himself of judicial power to enforce his security, the cause must take the ordinary course, and he concluded by the statutory judgment in suits for foreclosure. Whatever may have been the terms of the contract, yet neither party could require the courts of the country to modify the judgment they are directed by law to pronounce. Any portion of the relief sought not consistent with that directed by law to he awarded must he rejected as surplusage, and deficiencies in the prayer, for the same reason, supplied. As -in eases of charities, the. legal decree must he made, without regard to the propriety or impropriety of the prayer of the petitioner.

The decree in this case affords more extensive relief than was requested by the plaintiff, hut not more than he is entitled to under the law.

Neither party can have any substantial ground of complaint against the judgment, and there being no error, the same must he affirmed. An additional argument has been made, to the effect that the instrument which is the foundation of the action is a nullity, and cannot support a judgment. It is true that the instrument is signed by one only of the parties; hut he alone assumes any obligations. The plaintiff lias no duties to discharge, and there was no necessity for the affixing of his signature.

Judgment affirmed.  