Swisher v. Hancock

• Decision Date: 31 October 1868
• Parties: A. P. SWISHER v. GEORGE HANCOCK.
• Court: Texas Supreme Court

31 Tex. 262

A. P. SWISHER

v.GEORGE HANCOCK.

Supreme Court of Texas.

October, 1868.

It is a rule of pleading that all instruments shall be construed mos?? strongly against the party making the same.

Where the plaintiff claimed that three hundred bushels of corn was the only property he had, and insisted that it was exempt from forced sale because it was necessary for the “one year's provision” of his family, but failed to state of whom or of what that family consisted, the petition contained no such equity as entitled the party to an injunction, and it was rightly dissolved. Pas. Dig. arts. 3798, 3802 a.

APPEAL from Travis. The case was tried before Hon. J. J. THORNTON, one of the district judges.

Swisher applied for an injunction against Hancock, and alleged that, on the 25th of April, 1867, he had caused an execution to be levied upon three hundred bushels of corn, the property of the petitioner; that the petitioner was a poor man, and the corn is all he has in the way of provisions, and that it is altogether insufficient to furnish his family with bread and meat and such other articles of food as will be necessary for the comfort of said family during the year; that the petitioner is unable to pay the debt, and if the corn be sold the petitioner and his family must necessarily suffer for such provisions as are absolutely necessary for their comfort; wherefore he prayed for an injunction. It was granted. The defendant moved to dissolve the injunction for want of equity on the face of the bill. The injunction was dissolved, and judgment rendered against the plaintiff and his securities for the debt and damages under the statute. Pas. Dig. art. 3935. The defendant appealed.

Robards & Jackson, for the appellants, insisted that as the statute allowed an exemption of “one year's provisions” (Pas. Dig. art. 3798), they should not be subject to execution because all the food consisted of one article. As analogy they cited Pas. Dig. arts. 1304, 1305, and notes thereon. They also argued that the decision of the court, in effect, determined that all the corn was subject to forced sale, which was positively contrary to the statute.

Hancock & West, for appellees, argued that the “one year's provisions” exempted under our execution law (Pas. Dig. art. 3798) did not necessarily include as much as three hundred bushels of corn, and that the complainant ought to state a case which showed that such an amount of corn was exempt. They insisted, however, that the case was governed by the 135th chapter of the acts of the legislature (Gen. Laws, 160), and that therefore the article of corn is no more exempt from forced sale than any other article not mentioned in the law. They also insisted that, even if the corn was exempt, the case was so imperfectly stated as to render it impossible for the court to see any equity in favor of the plaintiff.

MORRILL, C. J.

Plaintiff's petition states that defendant recovered a...