Mabry v. Little
| Decision Date | 01 January 1857 |
| Citation | 19 Tex. 337 |
| Parties | JOSEPH MABRY v. WILLIAM D. LITTLE AND ANOTHER. |
| Court | Texas Supreme Court |
Quære, whether the holder of a promissory note can, for the mere purpose of bringing the demand within the jurisdiction of a justice of the peace, relinquish the excess of the note beyond one hundred dollars, and recover before the justice, if objection be taken at the proper time.
If the defendant in such case appears, and fails to object to the jurisdiction, and refers the dispute to arbitrators upon the merits, he cannot sustain a suit against the justice (there was a distress warrant) for damages, on the ground that he had no jurisdiction.
Where a distress warrant was issued without bond or affidavit, and the property of defendant seized, it was held that the defendant, by referring the dispute to arbitrators, waived any claim against the plaintiff and the justice for the improper issuance of the distress warrant.
Appeal from Rusk. Tried below before the Hon. William W. Morris.
Suit by appellant against William D. Little, late a justice of the peace, and Lemuel Mullins, for trespass, etc. The facts were as follows: Mullins obtained from Little, on the 10th of October, 1853, a distress warrant against Mabry, on a note signed by the latter, due October 1, payable to Mullins, for $108, purporting to be for rent for the place on which Mabry then lived. At the time of bringing the suit, Mullins wrote on the back of the note a relinquishment of all but one hundred dollars of the note. Two bales of cotton and a horse, the property of Mabry, were seized. No affidavit was made, nor bond given, before the issuance of the warrant; but they were afterwards made and given before the trial. They were dated October 10, 1853; referred to the warrant as having been issued; and the jurat of the one and the approval of the other were not dated. At the time for trial, the parties appeared and submitted the matter to arbitrators. The arbitrators found that so soon as the George Anderson pre-emption file was cleared off the land, so that said Mabry could file his own pre-emption, then said Mabry would be due said Mullins one hundred dollars, and not before. This was October 29, 1853; and on the award judgment was entered, and execution issued, and the two bales of cotton sold.
It was proved by George Anderson that he was present at the trial before the arbitrators, and there relinquished the preemption, and that Mabry accepted an order to the county surveyor for the relinquishment, and expressed himself satisfied. It was also proved that the said file was actually relinquished.
The court charged the jury without request, to the effect that if the defendants fraudulently colluded together, etc., the plaintiff was entitled to recover; and they might allow exemplary damages; but if defendant Little was not actuated by any wrongful intent, he was not liable, no matter how flagrant the errors he may have committed; and if they found no wrong in Mullins, they should also find for him.
The plaintiff asked instructions, which were refused, to the effect that if the distress...
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Tedford v. McWhorter
...Court of Civil Appeals. (See Pruitt v. Turner, Tex.Civ.App., 336 S.W.2d 440). Justice Wilson stated in his dissent as follows: 'In Mabry v. Little, 19 Tex. 337, Justice Wheeler held that even if the unlearned justice of the peace had no jurisdiction, if the plaintiff submitted to his jurisd......
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Pruitt v. Turner
...Tex.Jur., p. 800, Sec. 15, i. e., when he is 'acting within his jurisdiction.' Rains v. Simpson is among the authorities cited. In Mabry v. Little, 19 Tex. 337, Justice Wheeler held that even if the unlearned justice of the peace had no jurisdiction, if the plaintiff submitted to his jurisd......
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