Wiley v. Traiwick

14 Tex. 662 | Tex. | 1855

Hemphill, Ch. J.

The plaintiffs in error brought suit in April, 1853, against defendants, on a note for four thousand six hundred and sixty-one 76-100 dollars, and interest; and the defendants pleaded in reconvention, that on the 17th July, 1852, the plaintiffs had brought suit against the defendants, for the recovery of this identical note in the District Court for the parish of Caddo, in the State of Louisiana, together with the further sum of three thousand and forty-eight 15-100 dollars ; that a writ of attachment was issued in said suit, by virtue of which the Sheriff of Caddo parish seized and took into possession a large quantity of goods, belonging to defendants, which goods they had on their way from the city of New York to Jefferson, in the county of Cass; which they had purchased in New York, for the purpose of vending as merchants in Texas, and which cost eleven thousand seven hundred and fifty-five dollars in the city of New York, and were worth to the defendants, at the time of their seizure, the sum of twenty-five thousand dollars.

Defendants aver that they were not served with notice of the pendency of said suit, and that the plaintiffs, after they had sued out said attachment and seized the defendants’, goods, voluntarily,-—and before defendants could plead to said suit,—dismissed and abandoned the same ; and for greater certainty, of the proceeding's in said suit, a certified transcript was filed as an exhibit and made part of the answer ; and the defendants further averred, that the note now sued upon was not due at the time of the attachment; that the plaintiffs were then and are now residents of the city of New York, and that the defendants were then and still continue to be residents of the State of Texas ; and the defendants further averred, that notwithstanding the said plaintiffs, at the date of the commencement of the said suit and the suing out of attachment, well knew that the defendants were merchants trading in Texas, they, the said plaintiffs, wrongfully, maliciously and oppressively, and without any just or probable cause, sued out the said attachment, and, with the intention of harrassing the defendants, caused the said goods, &c., to be seized by the Sheriff of Caddo, and to be kept to the present time, by means whereof they were wholly lost to defendants ; and that, by said wrongful, malicious, illegal and oppressive acts, they were greatly injured in their credit and standing, and were compelled to make great sacrifices of their property, and to quit doing business as merchants, and have been damaged to the amount of twenty-five thousand dollars.

To this plea was appended a transcript of the proceedings in the suit in the District Court of the parish of Caddo, State of Louisiana. The plaintiffs excepted to this plea in reconvention, and moved that the same be stricken out on the grounds,

1st. That the same was not pertinent to, or responsive to the allegations in the petition.

2nd. That the matters and things, set up in the plea, were alleged to have transpired out of the State of Texas, and without the jurisdiction of the Court, and within a jurisdiction over which it had no control.

3rd. That the wrongs complained of in said plea, are not alleged to have been in contravention of the laws of Texas, nor to have been done within the jurisdiction of said laws.

4th. Because matters are alleged in defence here as having arisen under the jurisdiction of

5th. Because the plea of reconvention does not allege the said wrong to have been sustained by reason of the suit now pending in this Court; and for other reasons, apparent on the face of said plea.

The exception was overruled, and the jury found for the plaintiffs the amount of the note and interest, subject to a deduction of four thousand dollars damages in favor of defendants.

The plaintiffs have brought up the cause by writ of error, and assign that the Court erred in overruling plaintiffs’ motion to reject defendants’ plea in reconvention, for the reasons set forth in said motion.

The reasons are then enumerated, but in a very expanded, amended and enlarged form, and, in some respects, additional to the grounds set out in the special exceptions, as averred in the pleadings.

The only ground for consideration is, whether the matter, contained in the plea, constitutes a cause of action ; for if not, the plea being in the nature of a cross action, cannot be sustained. And we are of opinion, that the facts, as alleged, constitute a ground of complaint, in law, which, on proof, would entitle the defendants to relief. The plea is, that the plaintiffs wrongfully, maliciously, oppressively, and without any just or probable cause, sued out the attachment, seized the goods, and have ever since kept them, to the entire' loss of defendants, the plaintiffs subsequently abandoning and dismissing their said suit and attachment, before the defendants could plead to the same. These facts, if true—and they are to be held as such on exception-—-present strong grounds of complaint, and are sufficient to sustain an action.

The circumstance that the attachment was not issued in the present suit, is immaterial. It was sued out in a suit between the same parties, on this identical note, though coupled with another claim. The damages, claimed by defendants, grew out of a proceeding originating in the present suit, and being necessarily connected with it, come within the principle of the rule which admits claims of defendants,' when connected with the main action or cause of action, to be set up by way of re-convention. (Boyd v. Warfield, 6 Martin, N. S. 671.)

Nor is it material that the first proceeding was had in another Court, from that in which the present suit is brought, or in a foreign Court. The question is not, where the attachment issued, but whether it was justifiable. Of course, if issued in a foreign State, the forms of the proceeding must be tested by the laws of that State ; but if valid, in form, under those laws, the question still remains, viz : whether or not the plaintiff has perverted the forms of the law to the purposes of oppression, and this is for the determination of the Court, domestic or foreign, in which it may arise; and whether the proceeding, out of which it is charged to have originated, be in the one Court or the other, is immaterial.

It is not necessary, in this case, to consider, particularly, the facts which must exist, in order to support an action for a malicious attachment, or the various grounds on which the charge-of malice may be rebutted and probable cause be shown. But I will refer to one circumstance, suggested by the facts and arguments in the cause, viz: that the note was not due at the time of the attachment. Now, although, by the laws of Louisiana, attachment may issue on a note not due, yet this is not done on the usual oath, but, in addition to that oath, the creditor must also swear that the “ debtor is about to remove his property out of the State before the debt becomes due.” (Code of Practice, Art. 242.) This evidently implies that the property in question has a fixed bous in the State, and is about to be removed, most probably to the prejudice of domestic creditors. In no legitimate, at least in no obvious sense, can it be construed to embrace property on its passage through the territory of that State, to its destination in another State. A transportation of goods through a State, and a removal of them from that State, are different things. They are not, at least entirely, expressions of equivalent import, and a seizure of such goods in their passage, on the pretext that the defendant was about to remove them from the State, at the instance, especially,, of a foreign creditor, must, prima facie, be regarded as malicious, and not to be justified or extenuated, unless under strong circumstances, as for instance, of fraudulent designs on the part of the debtor, or almost a certainty of actual loss to the creditor.

The incalculable mischief that might grow out of the mali■cious use of this writ, when employed for the unjustifiable purpose of obstructing the free passage of property through the territory of the State, are too obvious to require any observation. They will present themselves to every mind, on the -slightest reflection.

Whether the circumstances, in this case, were such as to have justified the issue of the writ in Louisiana, is not before this Court for decision. The jury has found otherwise, and there has been no appeal from their verdict. The only question which we have to consider, is, whether the plea of reconvention was sufficient in law, and we are of opinion that it was, and that there was no error in overruling the exception of plaintiffs.

Judgment affirmed.