Taylor v. Hall

• Decision Date: 01 January 1857
• Parties: CREED TAYLOR v. ROBERT HALL AND WIFE.
• Court: Texas Supreme Court

20 Tex. 211

CREED TAYLOR

v.ROBERT HALL AND WIFE.

Supreme Court of Texas.

1857.

A, living in Bexar county, being joined as a defendant in a suit in Gonzales county, for taking plaintiff's cattle, after an answer of general demurrer and general denial, filed a plea, not under oath, to the jurisdiction of the court, claiming his privilege to be sued in Bexar, and alleging that the other defendants were joined merely to give the court jurisdiction; there was no exception to this plea, nor motion to strike it out, and when the case was called for trial, A requested the court to first try his plea to the jurisdiction, which the court refused; after the plaintiff had closed, there being no evidence against the other defendants, A moved the court to dismiss the case under his plea to the jurisdiction, which the court refused; and on error this court argued in support of the rulings, even if the plea had been sworn to and filed in due order of pleading, from which it would seem to follow that the mode of proceeding for the defendant in such a case, is to ask proper instructions to the jury upon the issue of jurisdiction; but the court said it was to be observed, moreover, that the plea was not sworn to and was filed after a plea to the merits. 15 Tex. 326.

The title of the wife to her separate personal property is not divested by a wager of the same on a horse race by herself and husband, and by a delivery of said property by them in payment of such wager. 28 Tex. 524.

It is not error to exclude evidence which could only go in mitigation of exemplary damages, where the case does not admit of exemplary damages at all.

In this case damages for the expense and cost of the suit being found by the jury as a separate item, and there being no evidence to justify it, the defendant in error was permitted to enter a remittitur, and the judgment was reversed and reformed. 6 Tex. 51;10 Tex. 159.

Error from Gonzales. Tried below before the Hon. Fielding Jones.

Suit commenced Feburary 4th, 1856, by Mary Hall, joined by her husband, Robert Hall, against John Lloyd, Henry Trammell, and Harrison Askey of Gonzales county, and Creed Taylor of Bexar county, and John Baker and Alfred Bailes of Guadalupe county, for forcibly taking and driving away, on or about the 10th of December, 1854, in the county of Gonzales, ninety-five head of stock cattle and milch cows, the separate property of the said Mary Hall, of the value of nine dollars per head; prayer for the value of the cattle as alleged, and for damages for the expense and cost of prosecuting this suit, which they alleged were $200. Baker died before service of citation. April 25th, 1856, the other defendants answered by general demurrer and general denial. May 1st, 1856, defendant Taylor amended his answer, by plea to the jurisdiction, alleging that his co-defendants were not concerned at all in the alleged taking of the cattle, and were improperly and vexatiously joined for the purpose of giving the court jurisdiction; and claiming his privilege to be sued in Bexar county; plea that the cattle were taken by this defendant with the consent of both the plaintiffs; and further plea to the effect that both plaintiffs had made a promissory note, payable in blank, for one hundred head of stock cattle, for the purpose of betting the same on a certain horse race with defendant Askey; that the bet was made and the race run, and won by Askey, who sold the cattle to this defendant, and that upon demand of the cattle by this defendant, plaintiffs both directed this defendant to gather said stock himself and take them, which he did to the number of eighty-six head, which were all he could find. The plea was full and explicit. The plea to the jurisdiction was not sworn to. There was no exception to either of the pleas. The evidence was as follows:

Plaintiff introduced W. D. Smith, who testified that sometime in the fall of 1854, defendant Creed Taylor, came to his, witness' house, and staid all night; that Taylor told him that he was gathering some cattle that he had bought from Robert Hall; that witness sold Taylor a lot of beeves; that witness and Taylor started out the next day in the range; witness to gather his beeves, and Taylor to collect the cattle; that Taylor had an assistant or hireling along. Don't know his name. Taylor did not go to Hall's house that witness knew of; assistant was armed with pistols. Did not see arms about Taylor. Taylor remained in the neighborhood several days. Did not seem to be secret in his purpose. It was generally known in the neighborhood what Taylor was doing. Witness lives about three miles from Hall. Trammell was along one day, but was hunting a yoke of oxen. Trammell nor Askey, nor Lloyd, nor did any one seem to be assisting Taylor, save his assistant driver; that Taylor fenced the cattle in Jack Watson's pen, and requested the witness to count them; witness did count them; were 92 or 95 head. Most of the cattle were branded P. K.; that he had always understood this to be Mary Hall's brand; that Robert Hall did not own any cattle in that brand that witness knew of, or any other; that the cattle were worth six or seven dollars per head; that Taylor drove the cattle off towards the west.

Plaintiff then introduced Helmes, who stated that in the fall of 1854, Creed Taylor sent for witness to come to H. Askey's house to count some cattle; that witness went, and Taylor requested witness and John Lloyd to count the cattle; that they did so, and counted some 86 head; that Lloyd assisted Taylor to...