| Tex. | Jul 1, 1874
This case must necessarily be -reversed. The jury returned a verdict for the plaintiff in the court" below, in damages against the defendant for the wrongful levy of his execution on a piece of property, which the plaintiff claims to be a part of his homestead.
Let us see how this matter stands. The defendant, Chadwick, recovered a judgment against the plaintiff, Meredith, in October, 1870. Execution -was levied on property, not the residence, but detached — property which Meredith did not claim as homestead when adjudged a bankrupt a year or two before, which was not set aside to him as such. Did Chadwick have a right to regard this property as subject to execution ? In directing it to-be levied upon, was he guilty of such a wrongful act as subjected him to a verdict for $350 damages ? We think
The judgment of the District Court is reversed and cause remanded.
¡Reversed and remanded.
Opinion rendered October 25, 1873.
Shepard, Searcy & Shepard, submitted a motion praying the court “to reform the judgment rendered in said cause, in accordance with the opinion given therein, because :
“The court reversed the judgment of the District Court ’because" of error in rendering judgment for damages against appellantand the appellee now here admits said error and remits to the appellant the entire amount of the ■same.
“And now because the court has deemed the judgment •of the District Court right in the main, and appellee has remitted the judgment for damages in full, he prays that the judgment be so reformed and revised as to show said ■remittitior, and that the judgment below be then firmed.”
This motion was continued, and at the next term submitted.
Breedlove & Ewing, insisted—
1. That the cause of reversal was not removed by the remittitur ; and—
2. On the merits argued:
But could Meredith in any event set up the $5000 homestead exemption against Chadwick’s claim, so as to defeat the collection of his judgment ? Meredith, in his petition for injunction (which is sworn to by him), alleges that that judgment is based upon a promissory note made by Meredith to Chadwick in 1862 (Meredith then ■owning the property in controversy). Chadwick, "in extending the credit, certainly had a right to look to any property of Meredith’s (not then exempt) for the security ¡and satisfaction of his claim. And we insist that it was not within the power of the Constitutional Convention to ■defeat or in any way impair any of the rights or legal
Justice Swayne, in delivering the opinion of the court in the first mentioned case, says:
"The legal remedies for the enforcement of a contract which belong to it at the time and place where it is made are a part of its obligation. A State may change them, provided the change involves no impairment of a substantial right. If the provision of the Constitution or the legislative act of a State fall within the category last mentioned, they are to that extent utterly void. They are, for all the purposes of the contract which they impair, as if they had never existed.” (15 Wallace, 633.)
Moore, Associate Justice. — The judgment of the District Court of Washington county, from which this appeal is prosecuted, was reversed by the judgment of this court on the twenty-third of October, 1873. It appears from the opinion of the court, delivered by Mr. Justice McAdoo, that it was not deemed necessary to discuss all the questions presented by the record, as the judgment must be reversed for error in the judgment for damages recovered by appellee.
At a subsequent day, prior to the close of the last term of the court, appellee filed a motion in which he admits error in said judgment for damages, and in the language of the motion, ' ' remits to the appellant the entire amount of the same. And now because the court has decreed the judgment of the District Court right in the main, and appellee has remitted the judgment for damages, in full, he prays that the judgment be so reformed and revised as to show said remittitur, and that the judgment below be then affirmed.”
This motion, which was continued by a special order of
Error in the amount recovered in the District Court may no doubt be cured by a remittitur in this court before its judgment has been entered, so as to authorize an affirmance or reformation of the judgment. And in some instances the ° court has intimated that the judgment would be affirmed upon a remittitur being filed. But we know of no rule of practice or precedent which sanctions or authorizes the motion made in this case. There is no intimation in the opinion of the court that the judgment would or should be affirmed, if appellee would release the damages recovered by him in the court below. Nor did we, previous to the announcement of the opinion of the court, propose to release them, but, on the contrary, insisted upon the correctness of the judgment in this as well as other particulars. We are clearly of opinion that it would be altogether improper in such a case to set aside the judgment of the court already rendered, to enable appellee to enter a remittitur and get an affirmance, even if the only error in the judgment might be cured thereby. Such an application comes too late after the court has acted upon the record, and the judgment has been reversed and the cause ordered to be remanded.
.The opinion of the court reversing the judgment does not, however, warrant the statement in the motion that “the court has deemed the judgment of the District Court right in the main.” We cannot say that the court believed or intended to decide that there was no errors in the ruling of the District Court in other particulars, merely from the absence of comment or reference to them in the opinion. Circumstances may be readily imagined which would have induced the reversal of this cause entirely consistent with the conclusion that the judgment would have been reversed upon other grounds if the error commented upon had not existed.
Motion refused and dismissed.