Ft. Worth Pub. Co. v. Hettson

• Decision Date: 13 March 1891
• Citation: 16 S.W. 551
• Parties: FT. WORTH PUB. CO. <I>et al.</I> v. HETTSON <I>et al.</I>
• Court: Texas Supreme Court

16 S.W. 551

FT. WORTH PUB. CO. et al. v. HETTSON et al.

Supreme Court of Texas.

March 13, 1891.

On rehearing.

GAINES, J.

A very careful consideration of the motion for a rehearing and examination of the record in this case have led us to the determination that, while the former may be inaccurate as to some of its statements as to the facts shown by the record, the conclusions therein announced are substantially correct, and that the disposition of the case heretofore made in this court is proper. The business of the court does not admit of any discussion at length of the points raised in this motion, nor do we see that such a discussion would serve any useful purpose. We must content ourselves with a few brief remarks upon the several grounds upon which the application is based. We will dispose of them in the order in which they are presented.

1. It is insisted that because T. P. Martin, one of the plaintiffs, failed to introduce any evidence of his writ of attachment, the judgment should be reversed. The authority relied upon in support of this contention is Latham v. Selkirk, 11 Tex. 314. That was a case of a trial of a right of property in certain chattels levied upon by virtue of an execution, and the point decided was that it was not error to refuse an instruction to the effect that the plaintiff in execution was not entitled to a verdict because he had failed to introduce in evidence the judgment upon which the writ issued. In the opinion it is said that, in cases of that character, the plaintiff should introduce in evidence his writ. This doctrine we have no disposition to gainsay, but we think the proposition subject to the qualification that, before the plaintiff can be required to produce his writ, its existence or validity should be put in issue by a special plea interposed for that purpose. Our statute provides that a trial of this character shall be upon issues made up under the direction of the court. Rev. St. art. 4833. It is also provided that, if the property be taken from the possession of the claimant, the burden shall be upon the plaintiff; but that, if it be taken from the possession of the defendant in the writ, the burden of proof shall be upon the claimant. Id. arts. 4838, 4839. These provisions indicate that the legislature contemplated that the trial should be what the name of the proceeding imports; that is to say, a trial of the right of property, and that the validity of the plaintiff's writ was not to be contested except by a special plea pointing out the grounds relied upon for showing its invalidity. If the plaintiff had to prove his writ in every case in which the defendant pleaded a general denial, logically the burden of proof would be upon him in every such case. Evidently the purpose of the statute was to secure a trial of the contest as to the right of property, and not of the validity of the writ; and we...