Mickie v. McGehee

• Decision Date: 01 January 1863
• Citation: 27 Tex. 134
• Parties: R. T. MICKIE AND OTHERS v. JAMES N. MCGEHEE.
• Court: Texas Supreme Court

27 Tex. 134

R. T. MICKIE AND OTHERS

v.JAMES N. MCGEHEE.

Supreme Court of Texas.

1863.

The plaintiff brought suit by publication in the county of his residence against defendants, who were non-residents of the state, and alleged in his petition that the defendants had no property in this state, other than a note due them by parties resident in a different county, which note was in the hands of an attorney resident in the county wherein the suit was instituted; and prayed for judgment and for satisfaction thereof out of the proceeds of said note when collected, and also for injunction restraining the attorney from paying over to the defendants the proceeds of the note until plaintiff's judgment should be satisfied. The defendants excepted to the jurisdiction of the court, assigning for cause that, by the plaintiff's own showing, the defendants were non-residents of this state, and had no property, effects, claims or demands in the county wherein the suit was brought. Held, that the suit was well brought in the county of the plaintiff's residence, and that the exception to the jurisdiction was properly overruled.

Though a mortgagor, on payment of the debt, is entitled to a release of the mortgage, yet, as a general rule, and except under very peculiar circumstances, he is not entitled, in an action to compel the execution of a release, to recover punitory damages from the other party.

NOTE.--Neill v. Newton, 24 Tex., 202;Blankenship v. Berry, 28 Tex., 448;Shaw v. Brown, 41 Tex., 446.

APPEAL from Limestone. Tried below before the Hon. N. W. Battle.

Suit by the appellee against R. T. Mickie, M. W. Mickie and S. B. Hudson, on an arbitration bond, for breach of which the plaintiff alleged that the defendants had failed and refused to execute to him a release of a deed of trust upon certain slaves, as required and bound to do in accordance with the award of the arbitrators. The plaintiff prayed judgment for the penalty of the bond, and also for general relief.

The defendants being citizens and residents of the state of Virginia, the suit was brought in Limestone county by publication. In his petition the plaintiff alleged that the defendants had no property or effects in this state, except a note upon certain parties residing in Freestone county, of which the sum of $831 remained unpaid, and which note was in the hands of D. M. Prendergast, Esq., a resident attorney of Limestone county, for collection. The plaintiff prayed for an injunction restraining the attorney from paying to the defendants the proceeds of said note, and that such proceeds be held subject to the satisfaction of his demand. He further charged that the refusal of the defendants to comply with the award by executing a release of the deed of trust was malicious, and for the purpose of vexing and harassing the plaintiff, who had been thereby compelled to employ attorneys at great expense, etc., for which he claimed damages.

The defendants excepted to the jurisdiction of the court, assigning for cause that, “by the plaintiff's own showing, these defendants are non-residents of this state, and have no property or effects, claims or demands of any kind or description whatever in said Limestone county.” This exception, as well as sundry others, was overruled by the court.

It appeared from the evidence that the negroes conveyed in the deed of trust had remained ever since its execution in the possession of the plaintiff's agent or bailee in Virginia, and that neither the trustee nor the defendants had ever had them in possession. There was evidence of a demand made by the plaintiff on the defendants for a release, and of a refusal by them without assigning any cause; and that ill will and bad feeling existed to some extent between the parties, in consequence of which, as some of the witnesses thought, the defendants refused to execute the release.

The court instructed the jury “that unless the evidence shows that defendants maliciously refused to execute the release referred to in the petition, they can give the plaintiff a verdict only for actual damages, and not for exemplary or vindictive damages.” And at the request of the plaintiff, the further instruction was given: “That if the jury find from the evidence that the defendants entered into a bond to abide by the award which has been read in evidence, and afterwards willfully and maliciously refused to perform said award, the jury may find a verdict for the plaintiff for such amount of damages as they may deem a just punishment for such conduct.”

The jury returned a verdict in favor of the plaintiff, and assessed his damages at two hundred dollars. Judgment accordingly, with decree subjecting the proceeds of the note in the hands of defendants' attorney to the satisfaction of the judgment. Defendants moved for a new trial, which was refused.

D. M. Prendergast, for the appellants.--1. The court erred in overruling the exceptions of defendants to plaintiff's original and amended petitions.

The first exception goes to the jurisdiction of the court.

The defendants, being non-residents, this suit, although not commenced by attachment, must be considered in the nature of a proceeding in rem, in order to give the court jurisdiction.

In such case it is the property, or effects or demands of the defendants which are sought to be subjected to the process of the court that confers jurisdiction. (Story Con. Laws, secs. 539, 549; 2 Kent Com., 95, note A.)

By the plaintiff's own showing, the defendants have no property, effects, claims or demands in the county in which...