Cook v. La Garza

• Decision Date: 01 January 1855
• Citation: 13 Tex. 431
• Parties: WM. M. COOK v. ANTONIO DE LA GARZA.
• Court: Texas Supreme Court

13 Tex. 431

WM. M. COOK

v.ANTONIO DE LA GARZA.

Supreme Court of Texas.

1855.

Error from Victoria. Action by plaintiff in error against defendant in error. Petition addressed to the judge of the third judicial district; material allegations that the defendant having recovered a judgment against the plaintiff, and two others in Victoria county, for $600 and costs of suit, had caused execution to be issued and levied on three tracts of land in said county belonging to plaintiff of the value of $10,000, each one of which tracts would bring more than enough, at public sale, to satisfy the execution, that the levy was oppressive, and that if said lands should be sold, &c. Further, that at the date of the judgment and ever since “he has owned and had in the possession of his agent, William Beaumont, in said county of Victoria, a large amount of personal or moveable property, consisting of horses, mares and mules, of great value, and at the time of the levy aforesaid, there was in the hands of his aferesaid agent personal property of the value of $1,200 or more; that neither he nor his agent was at any time ever called upon to designate or point out property, as he had the right to do, upon which said execution might be levied, and had he or his agent been so called upon he might have pointed out sufficient personal property to satisfy said execution,” &c. Prayer for injunction against the sheriff, and citation to De la Garza to appear at the next term of the District Court in and for said county of Victoria, to answer the petition; that the injunction be made perpetual, that the levy be quashed, and for general relief. The petition recited that the plaintiff was a citizen of the county of Calhoun, at the time of filing the same. Sworn to 30th July, 1853, before R. E. B. Baylor, judge, &c. Order, same date, by R. E. B. Baylor, judge, &c., to the clerk of the Dislrict Court of Victoria county to issue the injunction. Petition filed August 2d, 1853. After the order for the injunction the transcript on appeal to this court continued as follows:

Would represent that said defendant at the fall term, A. D. 1851, of the District Court in and for the county first aforesaid, recovered against your petitioner a judgment for the sum of six hundred dollars and costs, in a suit instituted to recover damages for alleged trespasses committed by your petitioner in the year 1848 or 1849; that said suit was instituted against your petitioner and E. S. Harper, Henry Harper, and George F. Harper, but before the trial thereof was continued as to the other defendants, and prosecuted against your petitioner alone; that on appeal to the Supreme Court said judgment was affirmed at the January term, A. D. 1853, thereof, and that there is now an execution in the hands of the sheriff of Victoria county, who has levied the same upon the property of your petitioner, and will proceed to sell the same, unless restrained by judicial process.

Your petitioner further represents that upon the trial of said cause at the fall term, A. D. 1851, the only witnesses who testified on behalf of the plaintiff as to material facts were Bartilo Esparsa and another Mexican whose name is not now recollected by your petitioner. Said witnesses testified that they were present at the time of the alleged trespass, and that they witnessed the same; that great force and violence were made use of by your petitioner, and that the plaintiff in said suit and his wife were violently assaulted and abused. Your petitioner further represents that on said trial no other witnesses testified to the same facts, and that the verdict of the jury was found mainly upon said testimony. Your petitioner further represents that he was surprised by the introduction of said witnesses and the character of their testimony; that said witnesses are utterly unworthy of credit, and that had he been apprised that they would be offered as witnesses he would have been prepared to impeach their testimony. Your petitioner further represents that he has learned since the trial of said cause, and since the rendition of the judgment in the Supreme Court, to wit, in the month of May last, that he could prove by H. Harper and George F. Harper, who now reside in the county of Lavaca, that he was not guilty of any of the alleged trespasses as complained of in said suit, and that the testimony of the aforesaid witnesses was in every particular false. Your petitioner further avers and charges that had he been able to produce said testimony upon the trial of the cause the verdict of the jury and judgment of the court would have been in his favor. Your petitioner avers that said judgment is unjust and oppressive against good conscience and equity, being founded upon the testimony of witnesses that have made false and fraudulent proof?? (Without signature.)

Then followed two affidavits by Henry Harper and Geo. F. Harper respectively, “that I have examined the annexed petition of W. M. Cook for an injunction, and that the statements therein as to what I know and will swear to I find to be correct.”

Then followed the bond, injunction, &c. The defendant excepted to the petition.

1st. That the sheriff should have been made a party.

2d. That the petition does not state that this respondent or the sheriff knew that plaintiff had an agent residing in Victoria county, or that said agent was authorized to point our property to be levied upon legally; nor does it state that either the sheriff or respondent knew that he had personal property sufficient to satisfy said execution.

3d. Said petition does not show the absence or sickness of the presiding judge or a vacancy in the office. And for further answer defendant admitted the judgment, execution, and levy as alleged, but alleged that the lands levied on were claimed by Cook by virtue of locations, and “that there are other claimants to the land under Mexican colonist titles, and that only enough of said land would have been sold to pay said debt, as your respondent presumes; that your respondent did not know of any property which said Cook owned in the county of Victoria other than his claim to said lands, or that the said Cook had any agent in the said county of Victoria, and he presumes that said sheriff was likewise ignorant of said facts, if they are true.” Defendant further averred his disbelief that Beaumont had any such authority as would have authorized him to point out property, or that Cook had sufficient personal property in said county to satisfy said execution. Prayer that “the said bill of injunction be dismissed and dissolved,” &c. Sworn to by defendant.

Motion to dissolve the injunction for want of equity, and because the material facts were denied on oath by defendant. Same day motion by defendant “to exclude from the papers in this case all that part of the paper filed as the original petition which does not precede the mandate of Judge Baylor, to wit: all that part of the petition on the 2d and 3d pages of said paper, because the same is immaterial, was no part of the original petition upon which the mandate of the said judge was granted, and therefore is no part of the pleadings in this case.”

Same day amendment of petition filed praying “that the matters and things set forth in the original petition in the above cause may be regarded as cause for a bill of review of the judgment and proceedings therein mentioned, and that said judgment and proceedings in said original petition be reviewed, and that said judgment be vacated,” &c.

Next day following entry: “Comes the plaintiff by attorney and asked leave of the court to file an amended petition praying that the matters” &c.; (same amendment filed on the day before;) and the court having considered the same and being sufficiently advised thereupon, refused to permit said amended petition to be filed or to grant the prayer thereof. And now come the parties by attorney, and by consent of parties the defendant, by attorney, moved the court to exclude, &c.; (same motion filed the day before;) and the court having duly considered said motion, overruled the same. The said attorney for defendant, also by consent of parties, then moved the court to dissolve injunction, &c.; (same motion filed the day before;) and the court having considered thereof, sustained said motion. Wherefore, &c., dissolving the injunction, dismissing the petition, and rendering judgment against the plaintiff and his sureties for the amount enjoined and ten per cent. damages thereon and costs.

Next day affidavits for change of venue were filed on behalf of the plaintiffs; six days afterwards motion for change of venue; same day leave granted to the plaintiff to amend; same day amended petition filed, stating substantially the same facts alleged in the addendum to the original petition; not sworn to. Next day motion for change of venue overruled. Then followed the petition for a writ of error, &c.

It was assigned for error,

1st. The court erred in dissolving the injunction upon the motion in this case.

2d. The court erred in striking out the plaintiff's amended petition upon motion of defendant.

3d. In dismissing plaintiff's petition the court erred.

A. S. Cunningham, for appellee, suggested delay.

WHEELER, J.

There is in the petition no averment that it was known to the plaintiff in execution, or to the sheriff, that the defendant in execution, (now plaintiff,) whose residence is alleged in another county, had an agent or personal property in the county on which the execution might have been levied. The sheriff was not required to call upon the defendant to exercise his privilege of pointing out property unless he was within the county, nor to apply to his agent unless it was known to him that the defendant had an agent there duly authorized for that purpose. An excessive levy upon real property, especially where the defendant in execution does not show that he has offerred and is ready to place in the hands of the...