Mills v. Hackett

• Decision Date: 26 February 1886
• Docket Number: Case No. 2223
• Citation: Mills v. Hackett, 65 Tex. 580 (Tex. 1886)
• Court: Texas Supreme Court
• Parties: M. J. MILLS ET AL. v. JOHN HACKETT.

65 Tex. 580

M. J. MILLS ET AL.

v.JOHN HACKETT.

Case No. 2223

Supreme Court of Texas.

Feb. 26, 1886.

APPEAL from Fort Bend.Tried below before the Hon. W. H. Burkhart.

This was a suit by sequestration, instituted by John Hackett, in justice court of Fort Bend county, against M. J. Mills, on July 18, 1881, to recover a certain mule described in the affidavit for sequestration, or for its value.The writ was executed July 19, 1881, and, on the following day, Mills replevied the mule, giving bond, with J. W. Blakely and H. M. Rose as sureties.On September 27, 1881, the case was tried in justice court, and judgment rendered for plaintiff.Defendant appealed to the county court, whence the cause was transferred to the district court, because of the county judge's disqualification.Pending the suit in the district court, the plaintiff filed a motion setting forth the death of H. M. Rose, one of the sureties on the replevin bond, and the insolvency of his estate, and praying leave of the court to dismiss as to such surety, whereupon the court made an order dismissing H. M. Rose from the replevin bond.

On April 11, 1885, the cause was tried in the district court, before a jury, resulting in a verdiet in favor of plaintiff for $130, the value of the mule, and the further sum of $74.40, its hire from the date of the replevin bond.On this verdict the court rendered judgment against M. J. Mills and his surety, J. W. Blakely, for $204.40 and costs of suit.The defendants appealed.

On the trial, the defendants asked of the court the following special charge: “A substantial variance in brands is any difference in the formation of the brands that would indicate a different ownership of the property upon which such brands are placed, and if the jury believe, from the evidence, that the brand, as made in plaintiff's affidavitfiled herein, is substantially different from the brand as proven, you will find for the defendant.”

The court refused this charge, and, instead, charged the jury as follows: “If you believe, from the evidence, that the mule in controversy is the property of the plaintiff, you will find for plaintiff, * * * unless you believe that there is a substantial misdescription of the mule in plaintiff's writ for sequestration, and in the writ and replevin bond, in which case you will find for the defendants.

There was some little conflict in the evidence as to whether the brand on the mule and the one set forth in the plaintiff's affidavit corresponded, but the animal was, in all other particulars, correctly described.

Parker & Peareson, for appellants, that the court erred in refusing special charge asked by appellants, cited: R. S., art. 4490, subd. 3;Morphy et al. v. Garrett, 48 Tex. 247;Heilbroner v. Hancock, 33 Tex. 715;1 W. & W. Civil Cases, sec. 1235;Id., vol. 2, sec. 495.

That the court erred in rendering judgment for the value of the mule, without according to defendants the right to restore the property in satisfaction, they cited: R. S., art. 1339;Blakeley's Admrs. v. Duncan, 4 Tex. 184;Chatham v. Riddle, 8 Tex. 167;Sayles' Tex.Pr., sec. 754;Avery v. Avery, 12 Tex. 58;Joram v. Thomas, 34 Miss. 76.

That the court erred in rendering judgment against the surety, J. W. Blakely, for costs of suit, they cited: R. S., arts. 4499, 4500, 4501;Mills v. Billingly, 49 Tex. 170, 171.

That the court erred in permitting plaintiff to dismiss as to the surety H. M. Rose, they cited: R. S., art. 4498.

R. H. Earnest, for appellee, on the questions discussed, cited: Floyd v. Rice, 28 Tex. 341;Vaughen v. Warnell, 28 Tex. 119;Fort v. Barnett, 23 Tex. 460;Oliver v. Chapman, 15 Tex. 406;1 W. & W., 1133;Tucker v. Hamlin, 60 Tex. 166;2 Wilson'sCond. Rep., 373;Davis v. Loftin, 6 Tex. 489;Thompson v. Shannon, 9 Tex. 356;Hagerty v. Scott, 10 Tex. 525;1 W. & W., 898;R. S., arts. 4501, 4502;Wrought Iron Range Co. v. Brooker, Tex. Law Rev., vol. 4, p. 196;Lockridge v. Baldwin, 20 Tex. 307;Sayles' Tex.Pr., 754;Avery v. Avery, 12 Tex. 58;1 W. & W., 880;Horton v. Wheeler, 17 Tex. 52;White v. Leavitt, 20 Tex. 704;2 Wilson'sCond. Rep., 730;R. S., arts. 1259, 1421.

WILLIE, CHIEF JUSTICE.

The court, in its general charge, instructed the jury to the effect that if there was a substantial misdescriptionof the mule in the plaintiff's affidavit, they should find for the defendant.This properly left to the jury the question as to what was a substantial misdescription.This was a question of fact; and the court had no right to tell the jury that a variance between the brand described in...