Ratcliff v. Hicks

• Decision Date: 01 January 1859
• Citation: 23 Tex. 173
• Parties: SARAH M. RATCLIFF v. H. C. HICKS, ADMINISTRATOR, ET AL.
• Court: Texas Supreme Court

23 Tex. 173

SARAH M. RATCLIFF

v.H. C. HICKS, ADMINISTRATOR, ET AL.

Supreme Court of Texas.

1859.

On a trial of the right of property, where there is no issue as to its value, nor offer by the claimant, to show, that the valuation thereof, by the sheriff who made the levy, is incorrect, if the verdict find the property to be liable to the execution, the court render judgment against the claimant and the obligors in her bond, for ten per cent. damages on the amount claimed in the writ (the debt being for an amount less than the value of the slave levied on, as estimated by the sheriff), it is no valid objection to the judgment, that the verdict of the jury did not find the value of the slave.

In such case, it is not error in the court to adopt the valuation of the sheriff, though it would be better in all cases, to require the jury to find the value of the property, so that the court may be able to make such a decree as will insure regularity in any proceedings that may become necessary after judgment.

The facts alleged in this case in the motion for a new trial, did not show sufficient merits, to authorize the granting of a new trial.

APPEAL from Tyler. Tried below before the Hon. James M. Maxcey. The main facts of the case are stated in the opinion.

The defendant filed a motion for a new trial, the grounds of which were, in substance, that she had been informed by her husband (who was defendant in the execution which was levied on the property claimed by her), and believed, that Seymour White, Esq., a practicing attorney of Tyler county, and who was in attendance on the court during its then present session, had been employed by her said husband to represent her, as her attorney, on the trial of the cause. That she believed he would have represented her, otherwise she would have employed other counsel; and that, when the cause came on for trial, White declined to take any part therein as her attorney. That she had no other attorney then in attendance upon the court, by reason whereof, judgment was rendered against her; and when the judgment was rendered, persons were in attendance upon the court, by whom she could have proven, that the negro girl in controversy, was her separate property, and not liable to sale under said execution, and had been in her possession, and claimed and held as her separate property, from the year 1851 up to the present time. That she resided more than fourteen miles from Woodville (the county seat), and was at home until the 13th day of May, believing that she would be represented by White. That the said slave was her separate property, and she would, on another trial, be able to prove it.

This motion was sworn to by her, and filed on the 13th day of May, 1858. The oath and bond of the defendant was filed on the 9th day of April, 1857; and the levy of the execution on the property claimed, was made on the 30th day of March, 1857. The motion...