Milburn Wagon Co. v. Kennedy

• Decision Date: 26 November 1889
• Parties: MILBURN WAGON CO. v. KENNEDY.
• Court: Texas Supreme Court

13 S.W. 28

MILBURN WAGON CO. v. KENNEDY.

Supreme Court of Texas.

November 26, 1889.

Appeal from district court, Ellis county; ANSON RAINEY, Judge.

Powell & Harding, for appellant. Grace & Templeton, for appellee.

GAINES, J.

The appellant corporation brought this suit against appellee upon certain promissory notes, and sued out a writ of attachment, and caused it to be levied upon a certain lot in the city of Waxahachie. The defendant, in his answer, claimed that the lot levied upon was a part of his homestead, and contested the right of plaintiff to subject it to the payment of its debt. When the parties announced ready for trial, the defendant admitted "the plaintiff's cause of action in full," and only denied that the lot in controversy was subject to forced sale. Upon the issue so presented, the court allowed the defendant to open and conclude. The plaintiff objected to this, and reserved an exception to the court's ruling. In addition to the allegations in its complaint setting forth its cause of action, plaintiff alleged that the defendant was about to transfer his property to defraud his creditors; and it is now contended that, in order to acquire the right conceded him by the court, the defendant should also have admitted this last allegation. But in our practice the defendant, in a suit in which an attachment has been issued, cannot controvert the grounds upon which the writ is sued out, for the purpose of defeating it; and hence whether the alleged ground for attachment existed or not was not an issue in the case. We conclude, therefore, that the court did not err in its ruling.

The defendant testified in his own behalf, and was the only witness examined. His testimony shows that he was the head of a family, which consisted of a wife and children, and that in 1862 he bought lot 1, in block 6, in Waxahachie, and about one month afterwards purchased the lot in controversy, which is lot 4, in the same block, and adjoins lot 1. He built a residence on the latter lot, and has ever since resided upon it with his family. A stable was built upon that lot, which extended over upon the lot in controversy. Both were embraced in a common inclosure, and for a long time lot 4 was used as a family garden. Some six or seven years before the trial the defendant built a house upon this lot, and constructed a partition fence between the two. This house, with the lot, was leased to tenants as a place of residence, and was so leased and occupied by a tenant up to the day before the attachment was levied. Having failed in his business, defendant induced his tenant to surrender the possession, and immediately removed the partition fence, and resumed the occupancy and control. He testified that he did this under the advice of counsel, "for the purpose of holding it as a part of his homestead, and to keep his creditors from levying upon it." He also testified, in...