Kaise v. Lawson

• Decision Date: 01 January 1873
• Citation: 38 Tex. 160
• Parties: FRANCIS KAISE ET AL. v. HANS J. LAWSON.
• Court: Texas Supreme Court

38 Tex. 160

FRANCIS KAISE ET AL.

v.HANS J. LAWSON.

Supreme Court of Texas.

1873.

1. Proof that the parents emigrated to Texas, and lived together as man and wife, is sufficient to establish the heirship of the children of the parties until the contrary is proven.

2. A judgment will not be reversed, though the charge be erroneous, unless it appears that the verdict was affected by such erroneous charge.

APPEAL from Galveston. Tried below before the Hon. George E. Mann.

Appellants, on the twentieth of May, 1869, filed their suit in the district court, as heirs of John M. Korner, against Hans J. and Mary Lawson, alleging that Korner was, on the first of June, 1863, the lawful owner of certain personal property, consisting of cattle, horses, tools, etc., amounting in value to $1,995, and continued the owner thereof until the day of his death, ninth of August, 1863; that a former wife of Korner, and appellants, were the only parties entitled to take said property as heirs of Korner; and that the said former wife, Lisette, left the state in March, 1853, and never returned to live with her husband, or to claim her interest in the property; that from June to October, 1863, defendants conspired, together with other unknown persons, to defraud them of their rights in said property, and in September thereafter wrongfully appropriated the same--defendants pretending that Mary Lawson had been married to Korner on the seventh of June, 1863, and as surviving wife, had a right to the disposition of said property, and did sell it to the defendant, Hans J., for valuable consideration; that said pretended marriage was void and fraudulently procured--Korner at that time being the husband of Lisette.

On the twenty-ninth of June, by an amendment, plaintiffs alleged recent marriage of defendant, Mary Lawson, to one Johnson, and made Johnson a party. On the second of July, 1869, defendant, Hans J. Lawson, filed an amended answer, alleging that if the sale was made as alleged by plaintiffs, he bought innocently, for value and without notice; that the plaintiffs, children of Korner, were bastards, born out of lawful wedlock, and therefore without any right to relief. The jury gave plaintiffs a judgment for $3,513.95. On motion, a new trial was awarded, and December succeeding the court overruled defendant's demurrer, and the cause was submitted to the jury, who gave defendant a verdict, upon which judgment was entered.

The evidence upon plaintiffs' part was that Korner came to Galveston with the mother of plaintiffs, and witnesses supposed, from the family living together, that she was the wife of Korner; that the mother died shortly after her arrival at Galveston, some sixteen years before the trial, and Korner married one Lisette, who left him in 1853; that Korner owned cows, horses, etc., and the stock sold by defendant, Mary Lawson, to Hans J. Lawson, after Korner's death.

One witness testified that Mary Lawson lived with Korner some years before their marriage. Plaintiffs proved that a marriage ceremony was performed between Korner and Mary in June, 1863, and that a divorce suit, brought years before by Korner against his second wife, Lisette, was pending at the time. None of plaintiffs' witnesses proved the time of Korner's acquisition of the property sued for; whether before or after the marriage with Mary Lawson. Defendants proved that in 1860 Korner and Mary lived together as man and wife; they had some such property as described in petition; they bought cattle during that year. Witness understood the purchase was made with Mary's own money, brought by her from Germany; was so informed by both Korner and...