Cook v. La Garza

• Decision Date: 01 January 1853
• Parties: WM. M. COOK v. ANTONIO DE LA GARZA.
• Court: Texas Supreme Court

9 Tex. 358

WM. M. COOK

v.ANTONIO DE LA GARZA.

Supreme Court of Texas.

1853.

Where, in an action against Cook and Harper, for forcibly dispossessing the plaintiff of the house and premises where he resided, the jury found a verdict as follows: “We, the jury, in the case of Antonio de la Garza v. William M. Cook, find for the plaintiff in the sum of six hundred dollars damages,” whereupon judgment was rendered against Cook and Harper, from which Cook alone appealed: Held, In answer to the objection that the verdict was against Cook alone, that the verdict was general against both, the attempted statement of the case being mere surplusage.

At Fall Term, 1850, verdict for plaintiff, and new trial on motion of defendant; Spring Term, 1851, continued on affidavit of the defendant; Fall Term, 1851, case called and laid over one day, at the request of the defendant; next day motion by the defendant for change of venue, and time asked to prepare the affidavits. After waiting what the judge considered a reasonable time, and no affidavits being presented, the case was ordered to proceed: Held, That the application for a change of venue came too late to entitle it to favor or to consideration as a matter of right.

As the jury, in an action of trespass, are not restrained in their assessment of damages to the amount of the mere pecuniary loss sustained by the plaintiff, but may award damages in respect of the malicious conduct of the defendant, and the degree of insult with which the trespass has been attended, the plaintiff is at liberty to give in evidence the circumstances which accompany and give character to the trespass, although distinct actions might have been maintained in respect of such circumstances; but the jury are not to award damages in respect of the distinct injuries involved in the circumstances accompanying the principal trespass, but only in respect of the principal trespass itself. (Note 56.)

Where the plaintiff being absent from home, the defendants requested his wife to go out of the house, which she refused to do, whereupon they removed the furniture and effects, which were in the house, into the yard, and then took hold of the plaintiff's wife, each taking her by an arm, and led her out of the house, she having an infant in her arms and resisting, and then pulled down one side and end of the house, and the cow pen and let out the cattle, the house and cow pen being of little value, and remained in possession for a time, after which the plaintiff went again into possession: Held, That a verdict for six hundred dollars damages was not so excessive as to warrant setting it aside.

Appeal from Victoria. This was an action brought by the appellee against the appellant and H. and E. S. and G. F. Harper, for a trespass committed, by forcibly dispossessing the plaintiff of the house and premises where he resided. The plaintiff discontinued as to two of the defendants, H. and G. F. Harper. At the Fall Term, 1850, there was a verdict for the plaintiff and a new trial granted. At the Spring Term, 1851, the cause was continued on affidavit of the defendant, Cook. At the Fall Term thereafter, the cause being called for trial, the plaintiff announced himself ready, whereupon the defendants asked that the cause be postponed until the next day, which was accordingly done. When the cause was again called for trial on the following day, the defendant, Cook, moved the court for a change of venue and asked time to prepare an affidavit in support of his motion. The court gave what the judge deemed, under the circumstances, a reasonable time; but no affidavit was offered, and the court directed the trial to proceed. A witness for the plaintiff testified that early in 1849 he was present at a trial of the right of possession of the premises on which the plaintiff resided, between the plaintiff and the defendant, Cook; that the decision having been adverse to the right of Cook, he said it was useless to try to get justice done in the courts of this country, and that he intended to take the matter into his own hands and to take possession of the land; that the plaintiff had promised to give him possession of the land if he did not show him a good title; that he had shown none; that the land was his, (Cook's,) and he intended to have it, and that he would put Harper in possession. The plaintiff was then living on the land, on which he had built two small houses and a cow pen, and had made some other improvements. It was in evidence that the defendant, Cook, in company with others, went to the house of the plaintiff and asked him if he would give him possession, to which the plaintiff replied he would not. The defendant then left, but returned in the evening with the witness and the three Harpers. The plaintiff being absent, they requested his wife to go out of the house, which she refused to do. They then removed the furniture and effects which were in the house into the yard. Cook and one of the Harpers then took hold of the plaintiff's wife, each taking her by an arm, and led her out of the house, she having an infant in her arms, and resisting. They then pulled down one side and end of the house; they also pulled down the cattle pen and let out the cattle. The house and cow pen were of little value. The Harpers remained in possession for a time, since which the plaintiff has been in...