Cone v. Lewis

64 Tex. 331 | Tex. | 1885

Stayton, Associate Justice.

The averments of the pleadings for the plaintiff were such as would sustain an action for exemplary as well as actual damages, and the court did not err in overruling the exceptions of the defendant which questioned the sufficiency of the averments of the petition to confer jurisdiction on the district court. Kolb v. Bankhead, 18 Tex., 229; Champion v. Vincent, 20 Tex., 812; Gordon v. Jones, 27 Tex., 622; Graham v. Roder, 5 Tex., 146; Cole v. Tucker, 6 Tex., 267; Mill v. Newton, 24 Tex., 202.

An officer is not liable for exemplary damages, who in proper manner and in good faith seizes property under a writ which he holds; but it affords no such protection to him when he wilfully uses process in his hands to accomplish a purpose forbidden by law, and thereby becomes its violator.

The cause was tried without a jury, and the motion made after the trial, as did the exception presented before the trial, again raised the question of the sufficiency of the pleadings to confer jurisdiction on the court, and'also raised the question of the sufficiency of the evidence to show that the plaintiff in good faith believed that he was entitled to recover a sum as exemplary damages sufficient to give the court jurisdiction.

That motion having been overruled, it must be presumed that, on hearing the evidence, the judge who tried the cause was of the opinion that the facts were such as to lead the plaintiff to institute the suit in the district court in good faith, believing that he ivas entitled to recover such sum as exemplary damages as would give the court jurisdiction, although in the opinion of the judge he was not entitled to other than actual damages. Gouhenant v. Anderson, 20 Tex., 460; Graham v. Roder, 5 Tex., 142.

We cannot say that such a finding was not supported by evidence.

It is urged that the dray levied upon was not exempted from forced sale although it belonged to the head of a family and was the only vehicle of any kind owned by him.

The statute exempts from forced sale, if owned by the head of a family, one wagon, one carriage or buggy. R. S., 2335.

In determining whether a dray is embraced within the meaning of the word “ wagon,” it is proper to look to the intention of the legislature in giving the exemption, and no such restricted meaning should be given to it as will defeat that intention.

“The intention of the legislature was to protect all (heads of families) in the pursuit of their occupations, and a correct construction of the law would seem to protect the drayman and cartman in the possession of their vehicles, although they do not come within the strict definition of the word ‘wagon.’” Rodgers v. Ferguson, 32 Tex., 535; Nichols v. Claiborne, 39 Tex., 366; Gordon v. Shields, 7 Kan., 325; Quigley v. Gorham, 5 Cal., 418.

The statute does not give the exemption of a vehicle which may be classed as a “wagon” to persons only who may be farmers, or who pursue some given occupation, but “ to every family; ” and the fact that the plaintiff was pursuing the business of a drayman, or that he used the vehicle in any particular way, could not defeat the exemption.

To a person pursuing the business of a drayman such an exemption would seem peculiarly appropriate, and in harmony with the spirit of the statute which exempts “all implements of husbandry,” and “ all tools, apparatus and books belonging to any trade or profession.”

The defendantjnsists that he is entitled to have deducted from the amount of the judgment rendered against him the sum which he realized from the' sale of the exempted property and applied to the payment of the debt for which the execution issued, and the costs of the case, including such as were incurred through his own unlawful acts.

To admit any of these claims would be practically to defeat the exemption, and indirectly do what the law declares shall not be done.

The judgment is not erroneous, and is affirmed.

Affirmed.

[Opinion delivered June 5, 1885.]