Mills v. Von Boskirk

32 Tex. 360

• Court: Texas Supreme Court
• Decided: July 1, 1869
• Status: Published

Opinion

Walker, J.

Mills & Bigalow, partners in trade, made their promissory note to one Floyd Clarkson, calling for $186 AE dated June 8, 1860, due twelve months after date, payable at the banking house of S. M. Swenson, Austin, Texas, with exchange on Hew York. The note was not paid at maturity, but was indorsed to the plaintiff below, and he brought suit upon it, at the same time suing out an attachment, which he caused to be levied on the east half of lot Ho. 2, block Ho. 12, south side of the public square, in the town of Belton. In the progress of the proceedings, Parentha J. Mills, the wife of defendant, Edward Mills, became a party intervenor, she and her husband claiming the property held on attachment as exempt from forced sale under the homestead laws.

At the September term of the District Court for the year 1868, the case was tried by a jury .upon several special issues, and upon all which were in any way material, the jury found for the plaintiff. The defendants moved for a new trial, assigning, amongst other grounds for their motion, that the verdict was not supported by the evidence, but was contrary to the evidence.

The court overruled the motion for new trial, and in this we think there was error.

Amongst the old jurists three things—life, liberty and power—were held sacred by the law, and we are disposed to protect the homesteads of families almost with equal watchfulness. But in this case we resort to ho latitudinous construction of the law. The evidence was totally insufficient to prove that the defendants below, Mills and wife, had abandoned their homestead in Belton, and there was none to show that they had acquired a new one.

Judgment below reversed and reformed.

Reversed and reformed.