Blum v. Strong

• Decision Date: 06 December 1887
• Parties: BLUM and others v. STRONG.
• Court: Texas Supreme Court

Page 167

6 S.W. 167

BLUM and others v. STRONG.

Supreme Court of Texas.

December 6, 1887.

Commissioner's decision. Appeal from district court, McLennan county; B. W. RIMES, Judge.

J. A. Strong, the appellee, brought his action in the district court of McLennan county against appellants Leon & H. Blum, of Galveston county, Texas, Sylvan Blum, of New York, and E. D. Costley, constable of McLennan county, for the wrongful issuance and levy of a writ of attachment from the district court of Galveston county, directed to McLennan county, and there levied on plaintiff's goods. Defendants pleaded to the jurisdiction, misjoinder of parties, and general denial. Verdict for plaintiff against all the defendants, who appealed.

Scott & Levi, for appellants. Herring & Kelley, for appellee.

MALTBIE, P. J.

The questions in this case arise from the suing out of an attachment by Leon & H. Blum in the district court of Galveston county, and causing E. D. Costley, who was a constable of McLennan county, to seize and sell a stock of goods, the property of J. A. Strong, under said attachment, which was situated at Crawford in McLennan county. After the seizure and sale of said property, Strong brought suit in the district court of McLennan county against the Blums and E. D. Costley for damages, actual and exemplary, on account of the said seizure and sale of his goods, but the claim for exemplary damages was eliminated by the rulings. It was claimed in the petition that the Blums and Costley combined together, and made an excessive and oppressive levy on plaintiff's goods, and the constable, at the instance of the Blums, sold the same in bulk at Crawford, where there were but few buyers, of limited means, and the Blums purchased said goods at less than one-fourth of their value, as the result of their combination; that plaintiff requested the goods to be sold in small lots; that, if it had been done, they would have brought something like their true value, but that the Blums and Costley disregarded the reasonable request of plaintiff, and caused said goods to be sacrificed. To these allegations the constable only pleaded a general demurrer, and the Blums their privilege of being sued in Galveston county, that being the place of their residence, but did not plead that the allegations of the petition were fraudulently made, with a view of giving the district court of McLennan county jurisdiction of the persons of the Blums. The jurisdiction of a court must be determined by the allegations of the petition, except when it is averred that the allegations are fraudulently made, in the answer, for the purpose of conferring jurisdiction, and there is issue joined, and it is found that the allegations were in fact fraudulently made, for the purpose of giving the court jurisdiction. The case of Hilliard v. Wilson, 65 Tex. 286 et seq., holds that, ordinarily, when a writ of attachment is wrongfully issued in one county, and levied in another, the plaintiff in attachment, being a resident of the county where it is issued, can only be sued in the county of his residence when the plea of privilege is interposed; but that decision further holds that such allegations as are contained in the petition in this case would be sufficient to give the court of the county where the writ was levied jurisdiction of the person of the plaintiff in attachment, in a suit by the defendant against him for damages on account of an oppressive and excessive levy and fraudulent sheriff's sale, resulting in loss to the defendant in attachment, from which it follows that this suit was well brought in McLennan county.

There was error under the facts of this case, in refusing to instruct the jury, upon request, to find in favor of E. D. Costley. The process was regular on its face, and not only justified, but required, him to make a sufficient levy to satisfy the amount of the attachment and all costs of suit. Article 144, Rev. St.; Drake, Attachm. § 194 et seq. The officer must necessarily exercise a discretion as to the quantity of goods or effects that would be required to bring the amount of the debt at forced sale. The inventory of the goods, as made out by the officer, was but slightly in excess of the amount of the debt, while they actually sold for only about half the amount of the debt. And there is no evidence in the record tending to show that he acted improperly in any way in making the levy or sale.

The court did not err in refusing to charge that the burden was on the plaintiff to show that the attachment was wrongfully sued out. While it is a rule of law, as well as logic, that the burden is on the party holding the affirmative of an issue, it is not believed to be necessary to give it in the charge to a jury in every case. A jury is to pass upon all the evidence in the record, without regard to whether the plaintiff or defendant has introduced any particular fact or facts; and it doubtless sometimes happens that the plaintiff's evidence is of itself insufficient to authorize a verdict in his behalf, but the defendant comes to his relief, and introduces evidence which, when taken together with that introduced by the plaintiff, will justify the jury in then rendering a verdict for the plaintiff, and vice versa. In ...