Evans v. Mills

• Decision Date: 01 January 1856
• Citation: Evans v. Mills, 16 Tex. 196 (Tex. 1856)
• Parties: W. F. EVANS AND OTHERS v. SARAH MILLS.
• Court: Texas Supreme Court

16 Tex. 196

W. F. EVANS AND OTHERS

v.SARAH MILLS.

Supreme Court of Texas.

1856.

Where it appears from the petition that the defendant does not reside in the county where suit is brought, and there are no allegations which bring the case within some one of the exceptions to the general rule which requires inhabitants of the state to be sued in the county of their domicile, the defect, if a mere omission of the pleader, may be cured by amendment.

The statute declares that in cases of fraud suit may be instituted where the fraud was committed, or where the defendant has his domicile.

No distinction is made between actual, positive fraud, and constructive fraud, and any act which, in contemplation of law, constitutes a fraud, will give jurisdiction in the county where it was committed.

Error from Walker. Tried before the Hon. Peter W. Gray.

The defendant in error was the mother of Youngblood. The evidence showed very clearly that the latter had been managing the business of the former, and purchased the slave in controversy with her money; that some dispute arose between them, and that their relation of principal and agent had ceased for some time, the slave remaining in the possession of the mother, when the son, in the town of Huntsville, sold the slave to J. T. Evans, who same day sold her to W. F. Evans, the slave being at the time in the possession of Mrs. Mills, and both J. T. and W. F. Evans knowing that she claimed the slave as her own property, although it did not appear that they were not both ignorant of the merits of the respective claims of the mother and son.

The order of court on the exceptions to the plea to the jurisdiction was as follows:

It is considered and ordered, that the exceptions of plaintiff to defendant's plea to the jurisdiction be sustained and said plea be struck out, and that defendant's plea to the jurisdiction on the petition, as amended, be overruled.

The other facts are stated in the opinion.A. P. Wiley, for plaintiffs in error, cited Illies v. Knight, 3 Tex. 312.

Yoakum & Branch, for defendant in error, cited Williams v. Randon, 10 Tex. 74;Bell v. McDonald, 9 Id. 378;Tousey v. Butler, 9 Id. 525. Henderson v. Kissam, 8 Id. 46, not in point.

HEMPHILL, CH. J.

Suit by Sarah Mills, in Walker county, for the recovery of a female slave, alleging that she was lawfully possessed thereof as her own property in Walker county, and that the defendants, William Youngblood and William F. Evans, the former residing in Trinity and the latter in Polk county, Texas, unlawfully and forcibly took said negro out of her possession and carried her to Polk county, where she is detained, etc.

The defendants excepted, among other matters, to the jurisdiction of the court, they not being residents of Walker county, and filed a general denial; the defendant, William F. Evans, pleading separately that he was an innocent purchaser of the slave from J. T. Evans, for valuable consideration, without notice of the adverse claim of the plaintiff.

From the record, it appears that the plea to the jurisdiction, coming up at the fall term, 1854, was waived. At the spring term, 1855, the plaintiff amended her petition by charging that the defendants, well knowing the negro to be the property of the plaintiff, combining together fraudulently to defraud her of her said negro, then in her possession in Walker county, did, in pursuance of said fraudulent intention and combination, at the time aforesaid, privily and fraudulently take said negro from her premises, under the fraudulent pretense that the slave was the property of said William Youngblood, and had been by him transferred to J. T. Evans, and by the latter to said William F. Evans.

The defendants amended their plea to the jurisdiction, charging that they had committed no crime or offense in Walker county for which a civil action in damages would lie. The plaintiffs excepted to this, that it came too late after an answer to the merits; and the defendants then filed a denial of the charge of fraud against them, as alleged in the amended petition.

At the trial, the entry of waiver of exception by the defendants, at the first term, was set aside, as being made by mistake. Some entries follow which are not very intelligible; but the amount of them is, that the defendants' plea of jurisdiction, to the petition as amended, was overruled.

The jury were instructed that two issues were...