Warner v. Bailey

• Decision Date: 01 January 1852
• Citation: Warner v. Bailey, 7 Tex. 517 (Tex. 1852)
• Parties: WARNER v. BAILEY.
• Court: Texas Supreme Court

7 Tex. 517

WARNER

v.BAILEY.

Supreme Court of Texas.

1852.

The words, “of the county of Jefferson,” annexed to the names of the parties, are a sufficient averment of their residence, under the statute, especially on general demurrer.

The office of a general demurrer in our practice is similar to that assigned to it in the common-law system of pleading; and the only question which will be entertained under it is, whether the pleading demurred to discloses the existence of any cause of action or ground of defense. The office of exceptions, on the other hand, is similar to that of a special demurrer in the English pleadings, namely, not only to question the existence of any cause of action or ground of defense, but to point out particularly wherein the pleading is defective. (Note 71.)

Where the petition, in an action for wrongfully suing out an attachment, set out the affidavit on which the attachment issued, and alleged that the writ was sued out “wrongfully, vexatiously, and maliciously,” and “without sufficient cause or justification,” it was held to be sufficient on general demurrer. But quere if there had been a special exception. (Note 72.)

Where the petition, in an action for wrongfully suing out an attachment, was objected to, on the ground that it did not appear from the petition that the suit by attachment had been determined before the institution of this suit: Held, That the averment that the attachment had been quashed, “as will more fully appear by reference to the record and proceedings now remaining in the said District Court of Jefferson county, (same court where this suit was brought,) and to which your petitioner prays leave to refer,” was a sufficient answer to the objection, it appearing from a transcript of the record in the case referred to that the District Court had at the same time quashed the attachment and dismissed the suit.

Appeal from Jefferson. This was an action to recover damages for an alleged trespass committed in wrongfully suing out and levying an attachment. The petition stated the names of the parties and their residence, as follows: “The petition of Isaac B. Bailey, of the county of Jefferson, complaining of Christian Warner, of the county of Jefferson and State of Texas.” It alleged that the plaintiff was the owner of a certain schooner in the county of Jefferson, engaged in trade and running between Sabine Pass and Niblett's Bluff, on tide water, and that the defendant, “well knowing the premises, and without sufficient cause or justification, wrongfully, vexatiously, and maliciously sued out an attachment, or process purporting to be an attachment, before one William Myers, a justice of the peace in and for the county of Jefferson;” and that the defendant, under color of the attachment, forcibly entered upon the said schooner, took possession of her, and forcibly held possession, and took and carried away her anchor, by reason of which loss and damages, particularly and specially stated and described, resulted to the plaintiff. The petition further alleged that, on appeal from the judgment of the justice to the District Court, the attachment, by order of the court, was quashed, “as will more fully appear by reference to the record and proceedings now remaining in the said District Court of Jefferson county, and to which your petitioner prays leave to refer.”

A copy of the affidavit on which the attachment was issued, and of the writ, was made a part of the petition.

The defendant answered by a general demurrer and a general denial.

There was a verdict and judgment for the plaintiff; a motion for a new trial, (made, however, after the lapse of more than two days from that on which the verdict was rendered,) and overruled.

Jones & Ballinger, for appellant.

H. N. & M. M. Potter, for appellee.

WHEELER, J.

The ground of error relied on was the judgment of the court, overruling the demurrer to the petition. And it is insisted that the petition is insufficient, in that--

1st. It does not state...