Cleveland v. Cole

• Decision Date: 02 February 1886
• Docket Number: Case No. 2175
• Citation: 65 Tex. 402
• Parties: W. D. CLEVELAND ET AL. v. M. S. COLE ET AL.
• Court: Texas Supreme Court

65 Tex. 402

W. D. CLEVELAND ET AL.

v.M. S. COLE ET AL.

Case No. 2175

Supreme Court of Texas.

Feb. 2, 1886.

APPEAL from San Jacinto. Tried below before the Hon. Edwin Hobby.

This is an action by M. S. Cole, joined by her husband, Richard Cole, against appellants, W. D. Cleveland et al., for the alleged wrongful conversion of two mules, of the value of $125 each, one wagon valued at $65.00, and about one hundred and twenty thousand pounds of seed cotton valued at $5,000, the petition alleging the same to be the separate property of M. S. Cole.

Defendants answered by general demurrer and general denial, and, specially, that the property was the community property of the plaintiff and her husband, R. Cole, and justified under executions issued upon valid and subsisting judgments against R. Cole for community debts. Subsequently, plaintiffs filed a supplemental petition, to which defendants demurred, on the ground that the facts alleged showed that the cotton was community property. The demurrer to the original petition was overruled, but that to plaintiffs' supplemental petition, in so far as it sought to recover the value of the cotton, or, in the alternative, the amount advanced by M. S. Cole in the production of the cotton, was sustained; in other respects overruled.

Defendants presented their first application for a continuance, which was overruled. The cause proceeded to trial, and was submitted to the court without a jury, resulting in a judgment in favor of Mrs. Cole, in her own separate right, for $210, the value of the mules and wagon, from which judgment both parties appealed.

The judge who tried the cause filed as his conclusions of fact a statement of the evidence adduced on the trial, from which it appears that in September, 1885, the appellants W. D. Cleveland et al., who were judgment creditors of Richard Cole, the husband of M. S. Cole, caused executions to be levied on two mules, a wagon, and about one hundred and twenty thousand pounds of cotton, as the community property of Cole and his wife, and that this property was, afterward, sold by the sheriff, and the proceeds of the sale applied to the payment of appellants' judgment against the husband.

It further appears that Richard Cole, acting for his wife, had rented, of one E. B. Smith, the land upon which the cotton levied on was subsequently produced, and had, at the same time, purchased of the same party the two mules and the wagon to be used by the husband in raising the crop; that Cole paid the rent for the land out of money which his wife had received in the compromise of a suit by her against certain parties for a tract of land partitioned to her out of the estate of a former husband of hers, and also made a cash payment of $90.00 on the mules, out of the same fund, giving the joint note of his wife and himself for the balance. The wagon, it seems, was purchased wholly on a credit, to be paid for out of the proceeds of the crop.

The application of the appellants W. D. Cleveland et al., for a continuance, which was duly sworn to, after stating the style and number of the cause, and the court in which pending, is as follows:

“Now come the defendants in the above cause, and say, that they cannot safely go to trial at this term of the court, for want of the testimony of A. Tidwell, who resides in San Jacinto county, Texas; that the testimony of that witness is material for their defense; that they have used due diligence to procure the same, in that they caused a subpœna to be issued by the clerk of the district court of San Jacinto county, on October 3, 1885, and executed by serving, by the proper officer, to-wit, the sheriff of San Jacinto county, upon that witness, on October 31, 1885, which subpœna, with the officer's return thereon, is hereto attached, marked exhibit “A,” and made part hereof; that they expect to procure the testimony of the witness by the next term of the court; that there are no other witnesses known to defendants, by whom the same facts can now be proved on this trial.” The suit was filed October 15, 1885, and was called for trial November 21, 1885.

R. S. Lovett, T. S. Hill, C. B. Martin and W. G. Ratcliff, for appellantsW. D. Cleveland et al., on question of continuance, cited: R. S., art. 1277; Chilson v. Reeves, 29 Tex. 275;Prewett v. Everett, 10 Tex. 283;Hepp v. Bissell, 3 Tex. 18.

That, in an action by the wife for the wrongful conversion of property bought partly with her separate means and partly with means of another character, she is entitled to recover only to the extent of her separate means so invested, they cited: Braden v. Gose, 57 Tex. 37;Claiborne v. Tanner, 18 Tex. 68;Zorn v. Tarver, 45 Tex. 519.

Denson & Burnett and Lea & McKellar, for M. S. Cole, that an application for a continuance addresses itself to the sound discretion of the trial court, cited: Ward v. Boon, Dallam Rep. 561; Fuller v. Craddock, Id., 458; Hipp v. Hutchell, 4 Tex. 20.

That money received by the wife, in compromise of a suit by her for land acquired by inheritance, is the separate property of the wife, they cited: Rose v. Houston, 11 Tex. 324;Fisk v. Flores, 43 Tex. 340.

That personal property purchased by the wife and paid for in part out of her separate funds, and in part by her promissory note, in which her husband joins, becomes her separate property, they cited: Wood v. Half, Weis & Co., 44 Tex. 633;Cleveland v. Williams, 29 Tex. 208; 2. Kent's Comm., marg., p. 492.

That cotton raised upon land rented by the wife for her separate use, all the expenses of cultivating and gathering the crop having been paid out of her separate means, is not liable for the debts of the husband, or for the community debts of him and herself, they cited: Rose v. Houston, 11 Tex. 328; McIntyre v. Chappell, 4 Tex. 192;Tucker v. Carr, 39 Tex. 98; Schouler on Husband and Wife, secs. 215, 224, 231, 280, 282; Stoker v. Bailey, 62 Tex. 299;Parker v. Coap, 60 Tex. 114;McKamey v. Thorp, 61 Tex. 649.

That the husband cannot, either with or without the wife's consent, so invest her separate estate that...