Blum v. Strong

Citations

• 71 Tex. 321
• 6 S.W. 167
• 1888 Tex. LEXIS 1143

Syllabus

<p>1. Venue—Illegal Attachment Proceedings.—In an action by the defendant in attachment against the officer making the seizure, and the attachment creditor residing in another county, and brought in the county where the seizure and sale were made, it was alleged in the petition that by collusion between the officer and the attaching creditors an excessive levy was made, and the goods sold in bulk, etc., for the purpose of injuring the defendant. Held, the allegations prima facie gave jurisdiction over the non-resident defendant; but by plea alleging that the allegations were fraudulently made for the purpose of conferring jurisdiction, followed by issue and proof of the fraudulent character of the allegations, the suit may be abated as against the creditor residing in another county.</p> <p>2. Charge of Court—Officer Making Levy.—In such damage suit, it appearing that the attachment was regular on its face and no irregularity in the action of the officer being shown in evidence, either in the seizure or sale of the goods levied upon, the court should have instructed the jury to find for such officer.</p> <p>3. Burden of Proof—Charge.—While it is a rule of law that the burden is upon the party alleging the affirmative of an issue, it is not always necessary or proper to give it in charge to the jury. In many eases testimony bearing upon the issue comes from both plaintiff and defendant, and in passing upon the entire testimony the jury should not have their attention directed to the party from whom the testimony may come. It is sufficient if the charge indicates the questions of fact to be found.</p> <p>4 Grounds of Attachment — Damages. — In order to defend against actual damages, the very ground stated in the affidavit must be true; while it is a sufficient defense to a claim for exemplary damages that there was reasonable and probable grouncte to believe the facts stated in the affidavit were true. In an action for actual damages it was proper to exclude evidence