Clardy v. Callicoate

• Decision Date: 01 January 1859
• Citation: 24 Tex. 170
• Parties: JOHN E. CLARDY AND ANOTHER v. J. B. CALLICOATE.
• Court: Texas Supreme Court

24 Tex. 170

JOHN E. CLARDY AND ANOTHER

v.J. B. CALLICOATE.

Supreme Court of Texas.

1859.

It is error, to decline deciding upon an objection to the defendant's answers to interrogatories propounded by the plaintiff, on the ground, that a similar objection was made at a former term, at which the cause was submitted to a jury, and that, therefore, it must be presumed to have been waived or determined.

A statement in the defendant's answer, that his creditors pressed him, because the plaintiff, by a writ of sequestration, had closed his store, is objectionable, for irrelevancy, where the question sought to elicit facts entirely antecedent to the closing of the store.

The opinion of a witness is not admissible, to prove that a party has been damaged by the suing out of a writ of sequestration, or the amount of such damage.

The business capacity of the party, his liabilities, capital, and profits of his business; his good credit before the writ issued, and want of it after its execution; his being pressed by creditors, and stopping business; are facts that may be shown, to aid the jury in determining the amount of damage incurred.

But such a case is not an exception to the general rule, that witnesses must state facts, and not opinions and conclusions from facts, either disclosed or not disclosed.

APPEAL from Caldwell. Tried below before Thomas H. Harwood, Esq., as special judge selected by the parties, the presiding judge being disqualified from sitting in the case.

This was a suit by the appellants, John E. Clardy and John G. Blanks, against the appellee, J. B. Callicoate, on a promissory note for $997.82, and to foreclose a mortgage given to them by the defendant, to secure its payment, on all of the groceries and provisions which he had in his store, as a grocer and dealer in provisions, and on all his notes, accounts and books, made and obtained by virtue of his said grocery and provision store.

The plaintiffs, at the time of commencing their suit, caused a writ of sequestration to be issued as to the property and effects included in the mortgage; by virtue of which the sheriff seized, and took into his possession, all of the groceries and provisions in the defendant's store, and held possession of them from the 2d until the 9th of February, 1856, when they were replevied by the defendant.

The defendant admitted, in his answer, the execution of the note and mortgage sued upon; but, by plea in reconvention, averred that the writ of sequestration had been wrongfully and maliciously sued out, and asked for judgment for the damages which he alleged he had sustained by reason thereof. During the pendency of the cause, the plaintiff propounded interrogatories to the defendant, the third of which, and the answer thereto, were as follows:

Interrogatory 3d. “Did you not state to said Clardy, at the time above stated, that you had already, and within the last day or two, disposed of all your valuable notes, claims and accounts, and that they amounted to about $1,000; and that you had but a few hundred dollars in claims, notes and accounts, left; and that they were nearly or quite worthless?”

Answer. “I did not, at the time above stated, tell him that I had disposed of all my valuable notes, claims and accounts; but did tell him, after he closed my store by writ of sequestration, that I had given them to Col. Montgomery and John McRobertson, to pay my debts that I owed them; do not remember saying the amount of debts paid off in the above way; did not say to him at the time first above stated, that I had only a few hundred dollars in claims, notes and accounts left; but did state to him, after my store was closed by him, as aforesaid, that I had only a few hundred dollars in notes and accounts left, after paying up the aforesaid...