Forbes v. Moore

• Citation: 32 Tex. 195
• Parties: COLIN FORBES AND OTHERS v. ENOCH MOORE.
• Decision Date: 01 January 1869
• Court: Supreme Court of Texas

32 Tex. 195

COLIN FORBES AND OTHERS

v.ENOCH MOORE.

Supreme Court of Texas.

1869.

1. See the opinion in this case on the subject of the degree of certainty requisite in making descriptive allegations in an action of trespass de bonis asportatis.

2. The petition charged the defendants with carrying away “forty-six head of cattle, three yoke of work oxen, three American mares,” and certain other live stock and articles described by number and kind, together with “all the farming utensils, household and kitchen furniture belonging to petitioner,” and laid the aggregate value of the whole property at $2,000. Held, that the petition did not contain a “full and clear statement of the cause of action,” and that an exception to it for insufficiency should have been sustained.

3. An averment that the plaintiff had labored under mental disability and temporary insanity was sufficient, if sustained by the proof, to prevent the statute of limitation from running against him so long as such disability subsisted.

4. A married woman, during the insanity of her husband, is the head of the family, and has a legal right to dispose of so much of the community property as may be necessary to the support of herself and their children; and, if there be no community property, she has the right, to the same extent, to dispose of her husband's separate property.

5. The husband, on recovering his faculties, can not recover against the agents of the wife the value of such property, disposed of by them under the wife's authority for the support of the family during the insanity of the husband, unless the agents unnecessarily squandered the property.

ERROR from Karnes. Tried below before the Hon. B. F. Neal.

The facts sufficiently appear in the opinion of the court.

F. Fauntleroy and J. S. Givens, for the plaintiffs in error, cited Cheek v. Bellows, 17 Tex. 613, and Wright v. Hays, 10 Tex. 131.L. S. Lawhon and A. R. Lane, for the defendant in error.

Chandler, Turner & Carleton, on the same side.

MORRILL, C. J.

On the 26th of February, 1861, Moore instituted suit against Colin Forbes, John A. Forbes, Lorenz D. Puckett, and his own wife, Cynthia J. Moore, to recover damages for taking from the possession of plaintiff his property, consisting of horses, cattle, sheep, goats, wagons, farming utensils, household and kitchen furniture, of the value of two thousand dollars. The time of the alleged trespass was the fall of the year 1856. In April, 1864, plaintiff amended his petition by stating that about the time the defendants committed the trespasses, the plaintiff was laboring under temporary derangement of mind, caused by severe illness, and that said temporary derangement continued until a short time before the commencement of the suit; and alleged his damages to be ten thousand dollars. On the same day the cause was tried in the district court, when plaintiff dismissed the suit against his wife, and recovered a judgment by default against the other defendants for two thousand dollars, the value of the property, and the further sum of seven thousand dollars damages. In May, 1864, the defendants petitioned for an injunction of the judgment, alleging as causes that it was agreed by the attorneys of both parties that the cause would not be tried, and also that it was tried contrary to the laws called the stay laws then in force, as well as for other causes therein stated. The injunction was granted, and the cause reinstated on the docket.

On the 19th of April, 1865, the district court perpetuated the injunction, and quashed the citation and service of the same on defendants, whereupon alias citations were issued and served; and in April, 1866, defendants filed answers, excepting to the sufficiency of the petition, setting up limitation, as well as a general denial. Judgment was rendered for plaintiff for two thousand five hundred and seventy dollars.

The case is brought to this court by the defendants on appeal, and the errors assigned are: first, the refusal of the court to sustain the exceptions to plaintiffs' petition, because of its vagueness; second, because the cause is barred by the act of limitations; third, the charge to the jury.

We shall take up these assigned errors in the order stated.

The congress of the republic of Texas, after having adopted “the common law of England as the rule of decision in this republic,” passed another act, providing “that the adoption of the common law shall not be construed to adopt the common law system of pleading, but the proceedings in all civil suits shall, as heretofore, be conducted by petition and answer.” Hart. art. 128.

The acts of the legislature provide the requisites of a petition, that it “shall set forth clearly the names of the parties, and their residence, if known, with a full and clear statement of the cause of action, and such other allegations pertinent to...