Mary J. O'Neil v. The Wills Point Bank, 67 Tex. 36

Stayton, Associate Justice. The attachment in this case was based on an affidavit which alleged that the defendant was about to remove his property, or a part of it, out of "the county in which the action was brought, with intent to defraud his creditors. The defendant died, and the cause is defended by his representative, who, in reconvention, seeks to recover damages actual and exemplary. Whether the attachment was wrongfully sued out was fairly submitted to the jury, and their finding, in effect, that’ it was not, is not wanting in evidence to sustain it.

It is claimed in the brief of counsel that the levy was excessive, and that on this ground damages should have been allowed to- the defendant. An inspection of the pleadings does not show any such averments of fact as would have entitled the defendant to recover from the plaintiff damages on this ground, and there was no-charge given or requested upon that subject. The answer alleges that property of value largely in excess of the sum sued for was attached; but there are no such averments in the answer as would be necessary to show a liability on the part of the plaintiffs for an excessive levy.

If, however, the pleadings and proof had been sufficient to justify a recovery upon this ground, a charge should have been asked upon that subject, when the charge given did not direct the jury in this respect.

The peculiar purposes to which the safe and hack levied upon •were applied by the defendant, prior to the levy, could not have made the measure of damages for an unlawful seizure such as was asserted in the answer, and there was no error in the ruling of the court in sustaining an exception to so much of the answer as sought damages based on the deprivation of such use and not upon the value of the property.

Any evidence tending to show that the defendant was removing his property from the county, and that at the time he was clouding the title to a part of the property so to be removed, was admissible, especially in a case in which exemplary damages were asked, to show fraudulent intent. What it was proper to prove it was proper to allege, and the court correctly overruled exceptions to so much of the supplemental petition as set up the matters referred to in the brief of counsel for appellant under the second assignment of error.

The evidence of the witnesses Fuller and Lybrand was admissible under the issues made in the case, if for no other purpose, to show from the dealings of the defendant with them, that they had ground to believe that the purpose of the defendant in removing his property from the county was to defraud them. The evidence had but a remote bearing even upon that matter, but it was not irrelevant. The declaration of Bridges, proved by Fuller, would not ordinarily be admissible, but when the question whether

an act was done in good faith becomes an issue in the case, the declarations of other persons made to the actor, which influenced, or may have influenced his action, or which tended to illustrate the intent of his adversary, where intent becomes important, are often admissible. What has been said in reference to the plaintiff’s pleadings under the second assignment of error, disposes of the sixth assignment, which relates to the admission of evidence to sustain the pleading to which we have held that the court properly overruled a special exception.

What the defendant did on the next day after the attachment was levied towards removing the property from the county, which he evidently intended to remove at the time the levy on a part of the property was made, and had then made preparation to remove, had but a remote bearing on the issues involved, but we can not say that it was irrelevant; for it tended to show the fixed purpose of the defendant to remove property from the county, which had been hindered or delayed by the seizure of some of the horses intended to be removed and to be used in the removal of other property.

The eleventh assignment of error is that: “The court erred in overruling defendant’s motion for new trial, as shown by bill of exceptions Ho. 11.” Bill of exceptions “Ho. 11” is no more specific than is the assignment. An inspection of the motion for new trial shows that it was asked on eight separate grounds. It ought to be understood, after the repeated rulings made upon this question, that such an assignment of error will not be considered. The statute and rules of this court plainly point out how assignments of error must be made (Rev.

Stat., art. 1037; Rules of the Supreme Court, Hos. 23-26,) and a failure to observe them will be, as the statute and rules declare shall be, regarded as a waiver, unless the error be such as the court would act upon without any assignment. We find no such error, and the judgment will be affirmed. Affirmed. Opinion delivered November 26, 1886.