Munnerlyn v. Alexander

38 Tex. 125 | Tex. | 1873

Walker, J.

The appellant sued out an attachment in September, 1865, against the appellee and Smith & Turvin. Most of the property levied on appears to have belonged to Alexander; but by some means or other, Smith, his co-defendant, replevied the property, and kept it in possession for nearly a year. The property consisted of •seven wagons, valued at $500; twenty:nine and a half yoke of oxen, valued at $725; and three horses, valued at $200, and perhaps some other property. In the course of proceedings, the attachments were quashed. The appellee brought a cross-action for damages, the petition declares, on a joint and several note, for $1500. The affidavit does not correspond with the note, but the plaintiff was permitted to amend the irregularities in his proceedings.

It is first insisted on as error, that the court overruled the plaintiff’s exceptions to Alexander’s original answer and plea in reconvention; and it will be noticed that the appellee did not declare in his original plea, on the attachment bond; but he averred the wrongful suing out of the attachment, and claimed damages. On this plea an issue was joined, and the plaintiffs set up new matter in evidence. Years elapsed before the pleadings were settled and a trial had.

After the replication was filed the appellee filed an amended plea declaring on the attachment bond; and.it would seem from the order of pleading that the appellee’s amended plea and answer had been filed before the exceptions were filed to his original plea; there was certainly then no necessity for an exception, as the amended plea did declare on the attachment bond.

The original and amended "plea, taken together, were sufficient, and wé do not think the court erred in overruling the exceptions.

The appellee then had his cause of action sufficiently stated against the plaintiff and his securities.

The second error assigned is to the charge of the court, but we are unable to find any exceptions taken to the charge. The error complained of probably consists in that part of the charge which instructed the jury that the plaintiff was liable, in actual damages, for the use of the property while it was withheld from the possession of the appellee. But upon proof that the attachment was wrongfully sued out, we are of opinion the jury had a right to consider and allow reasonable compensation at least to the appellee for the damage sustained by being deprived of the use of his property. (See Walcott v. Hendricks, 6 Texas, 419 ; Culbertson v. Cabeen, 29 Texas, 255; Harrison v. Harwood, 31 Texas, 657; Brown’s Adm’r v. Tyler, 34 Texas, 168.)

Upon careful examination of all the assignments for error, we do not think there is cause to reverse this judgment. The verdict of the jury does not give the appellee a larger amount of damages than the testimony authorized, though we must confess it is rather a strange result that a plaintiff should bring his action on a promissory note for §1500, and so manage his case as to get a judgment against himself for near $3000; nevertheless, the jury are the better judges of this matter, and we affirm the judgment.

Affirmed.