Ammon v. Thompson , 34 Tex. 237 ( 1871 )

Walker, J.

On the second of September, 1861, the plaintiff in error brought suit against the defendant in error in the District 'Court of Fayette county, on two promissory notes, amounting in the aggregate to something upward of two hundred dollars. The suit was commenced by attachment, sued out upon an aBdavit which charged that the defendant, who had been the publisher of a newspaper in the town of La Grange, had stopped the publication of his paper; had left the State of Texas, and gone to the State' of Mississippi to reside; had left no property in the State, ■except the presses, furniture and material used in the publication ■of the paper; that he had left this in -charge of one Wheeler, who had sold and disposed of some portion of the property, and was .about to sell and -dispose of the remainder, to defraud the plaintiff. The sheriff had '.the property attached and valued at eight hundred -dollars.

•On the sixth .day of June, 186-3, the plaintiff executed to the sheriff a delivery bond in the sum of sixteen hundred dollars, conditioned that the property should be forthcoming to abide the event of the suit, and it appears that on the fifteenth day of May, 1866, the defendant replevied the property, giving a special bail .bond for the payment of whatever judgment might be rendered against him in the suit.

But in the meantime the defendant had returned to the State-, and on the fourteenth day of November, 1865, he filed his answer setting up that the property attached was exempt from forced sale,, being the tools and apparatus of his trade and profession; that his-absence was only temporary, occasioned by,.the late war; that he had been relying on, and atill intended to rely on, the business of a newspaper publisher for his living. And he further plead, in reconvention of damages, for the use of his presses, type, etc., on which a newspaper called the Patriot had been published by one McClellan, by the authority of the plaintiff. On the petition,, answer and amended answer, the cause was submitted to a jury; not, however, before Hattie Thompson,- the wife of the defendant, had intervened, setting up, amongst other things, that the property attached had all been purchased with her separate means, and that it belonged to her; that she was still living in the State of Mississippi, at the town of Oxford, but intended to return to- La Grange,, regarding it as their home, so soon as their circumstances would permit.

The jury found a verdict of one dollar for the plaintiff, which' entitled him to- recover his costs; but the court undertook to-apportion the costs between the parties, and committed an error therein, for which the. judgment will be reversed. And this court,, proceeding to render the judgment which the district court ought to have rendered,, do-., order, adjudge and decree, that the plaintiff in error, A. Ammon, do have- and recover from the defendant in error, Victor W. Thompson, and the surviving sureties on his special bail bond, the -sum. of. one. dollar,, with interest at the rate -of eight per cent, on the same since the date of the judgment of the •district court until paid, and all his costs in this behalf expended, both in this court and in the district court.

Reformed and rendered.