Cone v. Lewis

• Decision Date: 05 June 1885
• Docket Number: Case No. 5479.
• Citation: 64 Tex. 331
• Parties: J. H. CONE v. JOHN LEWIS.
• Court: Texas Supreme Court

64 Tex. 331

J. H. CONE

v.JOHN LEWIS.

Case No. 5479.

Supreme Court of Texas.

Jun. 5, 1885.

APPEAL from Milam. Tried below before the Hon. W. E. Collard.

Appellee Lewis, plaintiff in the court below, brought this suit against the appellant, Cone, for the alleged wrongful and malicious seizure and conversion of a dray, the property of Lewis, who was the head of a family, a licensed drayman in the town of Rockdale, and owned no other vehicle.

Plaintiff claimed $50 for the value of the dray, $100 special damages for the interruption of his business, and $1,000 for exemplary damages.

Defendant pleaded to the jurisdiction of the court, that the claim for special and exemplary damages had been falsely made for the purpose of giving jurisdiction to the district court, and filed general and special exceptions, all of which pleas were overruled, save the exception to the claim for special damages, which was sustained.

Defendant also pleaded, in justification, that he made the seizure in good faith, as constable, under an execution against Lewis, in favor of one Moody, after having taken the advice of an attorney upon the facts.

The case was tried by the court without a jury, resulting in a finding that the dray was exempt from execution; that plaintiff was not entitled to exemplary damages; and in a judgment for plaintiff for $30, as the value of the dray.

W. K. Homan, for appellant, cited: Bridge v. Ballew, 11 Tex., 136; Lay v. Blankinship, 3 Tex. L. Rev.; McGaughey v. Meek & Painter, W. & W. Cond. Rep., 1197; R. S., 2335; Quigley v. Gorham, 5 Cal., 418; Favers v. Glass, 22 Ala., 624; Thomp. on Homes. & Exemp., 809, 810; Rodgers v. Ferguson, 32 Tex., 533;Nichols v. Claiborne, 39 Tex., 363.

Antony & Wilcox, for appellee, cited: Graham v. Roder, 5 Tex., 141;I. & G. N. R. R. Co. v. Nicholson, 61 Tex., 550; R. S., art. 2335; Robinson v. Robinson, Tex. Law Rev.; Champion v. Vincent, 20 Tex., 811; W. & W. Cond. Rep., 1196, 1197; Gordon v. Jones, 27 Tex., 622.

STAYTON, ASSOCIATE JUSTICE.

The averments of the pleadings for the plaintiff were such as would sustain an action for exemplary as well as actual damages, and the court did not err in overruling the exceptions of the defendant which questioned the sufficiency of the averments of the petition to confer jurisdiction on the district court. Kolb v. Bankhead, 18 Tex., 229;Champion v. Vincent, 20 Tex., 812;Gordon v. Jones, 27 Tex., 622;Graham v. Roder, 5 Tex., 146;Cole v. Tucker, 6 Tex., 267; Mill v. Newton, 24 Tex., 202.

An officer is not liable for exemplary damages, who in proper manner and in good faith seizes property under a writ which he holds; but it affords no such protection to him when he wilfully uses process in his hands to accomplish a purpose forbidden by law, and thereby becomes its violator.

The cause was tried without a jury, and the motion made after the trial, as did the exception presented before the trial, again raised the question of the sufficiency of the pleadings to confer jurisdiction on the court, and also raised the question of the sufficiency of the evidence to show that the plaintiff in good faith believed that he was entitled to recover a sum as exemplary damages sufficient to give the court jurisdiction.

That motion having been overruled, it must be presumed that, on hearing the evidence, the judge who tried the cause was of the opinion that the facts were such as to lead the plaintiff to institute the suit in the district court in good faith, believing that he was entitled to recover such sum as exemplary damages as would give the court jurisdiction, although in the opinion of the judge he was not entitled to other than actual damages. Gouhenant v. Anderson, 20 Tex., 460;Graham v. Roder, 5 Tex., 142.

We cannot say that such a finding was not supported by evidence.

It is urged that the dray levied upon was not exempted from forced sale although it belonged to the head of a family and was the only vehicle of any kind owned by him.

The...