Alsup v. Jordan

• Decision Date: 06 December 1887
• Citation: 6 S.W. 831
• Parties: ALSUP <I>et al</I> v. JORDAN.
• Court: Texas Supreme Court

6 S.W. 831

ALSUP et al v. JORDAN.

Supreme Court of Texas.

December 6, 1887.

Appeal from district court, Panola county; H. L. STONE, Special Judge.

R. L. Hightower, for appellant. T. P. Young and A. J. Booty, for appellees.

STAYTON, J.

The appellee brought a suit for divorce against her husband, A. J. Jordan, in April, 1882, and obtained an injunction restraining her husband from selling the property which belonged to them, and from interfering with her management and possession of the homestead and other property. She was also given the control of their five children during the pendency of the suit. On February 5, 1883, an order was made authorizing the appellee to sell all the personal property belonging to herself and husband, to raise means to support herself and children. A decree of divorce was granted on September 13, 1884. On January 29, 1883, the appellants obtained a judgment in justice's court against A. J. Jordan, on which an execution issued February 10, 1883, and this was levied on a cow and two-year old heifer, the only cattle owned by Jordan and wife, and also upon a piano owned by them. This property was sold under the execution, and the present action was brought by Mrs. Jordan to recover damages, actual and exemplary, on account of the sale of this property, which is alleged to have been exempt from forced sale. The petition alleges that the property was exempt from forced sale, and charges that the appellants, knowing of this, and the pendency of the suit for divorce, and the orders made therein, against the protest of appellee, maliciously, and with intent to injure, vex, harass, and distress her, caused the same to be seized and sold under their execution. There was a verdict and judgment against the appellants for damages, actual and exemplary.

There is no complaint of the charge of the court, except that it informed the jury that the piano was exempt from forced sale if it was used by the plaintiff or by her and her husband as a part of the furniture of their house. In this connection, the court instructed the jury "that the word `furniture' includes a supply of necessary, convenient, or ornamental articles for a residence, and for the purpose of teaching their said children music thereon." There is no assignment of error presented which questions the sufficiency of the evidence to sustain the verdict, and it must therefore be assumed that the appellants concede the sufficiency of the evidence to authorize the jury to find that the material averments of the petition were proved. "The defendants offered to prove by Drury Field, Esq., that he, as the legal adviser and attorney for defendants, went to J. G. Hazlewood, one of the attorneys of record for S. E. Jordan in the suit for divorce against her husband, A. J. Jordan, and inquired of said Hazlewood why he did not stop the sale of the property the sale of which is complained of in this cause, to-wit, the cow and yearling and piano, and that Hazlewood replied that `We don't want the old property;' and that this conversation was after the levy on said property was made, and before the sale; and that said witness communicated said statement of J. G. Hazlewood to J. A. Alsup, one of the defendants, before the sale of the property." This evidence was objected to on the ground that it was immaterial and did not bind plaintiff, and the objection was sustained. Whether Hazlewood had authority to make such a statement or not would be important on the question of the right of appellee to recover actual damages; but if he had not authority to bind the appellee, it may be true that his connection with her business was such as would have made his statement admissible, when shown to have been communicated to the appellants before the sale, for the purpose of illustrating the animus of appellants in causing the property to be sold. However this may be, the uncontroverted evidence shows that before the sale was made the appellants were fully advised of the fact that Mrs. Jordan was unwilling that the property should be sold. Hence, if the testimony had been admitted it could not have influenced the verdict. The testimony of the witness would tend to show that he, as the legal adviser of the appellants, was of the opinion that the property was not subject to forced sale; and the inference is very strong that the inquiry made by him was for their benefit. If so, they ought not to have relied upon the statement of any one not known to have authority from Mrs. Jordan to speak for her. If it was erroneous to exclude the evidence, no injury could have resulted from this, for with full knowledge of the opposition of Mrs. Jordan to the sale the appellants caused it to be made. They also had actual knowledge of the proceedings in the divorce suit, the legal effect of which we need not consider on this appeal. The decree divorcing Mrs. Jordan from her husband was objected to on the ground that the special judge who tried the case was county judge of Harrison county. If a special judge, within the meaning of the constitution, be such an officer as is forbidden to hold another office, then the acceptance and exercise of this office would operate as an abandonment of the...