Swisher v. Hancock

31 Tex. 262

• Court: Texas Supreme Court
• Decided: October 15, 1868
• Status: Published

Opinion

Morrill, O. J.

—Plaintiff’s petition states that defendant recovered a judgment against him for $72 50 and $4 costs, before a justice’s court, in March, 1867; that in April, 1867, an execution issued thereon and came to the hands of the sheriff, who levied upon three hundred bushels of corn, the property of plaintiff, of the value of $150.

That plaintiff is a very poor man, and has a family dependant upon him for support; that the corn levied on is all he has in the way of provisions, and that it is altogether insufficient to furnish his family with bread, meat, and such other articles of food as will be necessary for .the comfort of the family during the year. Petitioner requests that the sheriff and defendant be enjoined from further proceeding upon the judgment and execution.

Defendant requested the judge to dismiss the bill of injunction, because there are no equities apparent on the face of the same.

The court dismissed the bill, and the plaintiff appealed to this court.

It is a rule of pleading that all instruments shall be construed most strongly against the party making the same. The petition states that he has a family dependent upon him; but he does not state the number, ages, or sex, or condition of the members of the family. This family may consist- of one person, or a greater number, and they may be of such ages as to furnish important aid and assistance, or be an incumbrance. If the cause had been submitted to a jury to say whether three hundred bushels of corn was more than sufficient to support a poor man and his family, the jury could not decide without knowing the number of the family, but this could not have been shown, because not alleged.

But plaintiff does not state that this corn will be consumed by his family as an article of food, but that this is altogether insufficient to furnish his family with bread, meat, and such other articles of food as will be necessary for the comfort of the family during the year. If the jury were called upon to say how much corn would be necessary to furnish a family with bread, meat, and other articles necessary for the comfort of a family, they would find the word “ comfort” to be difficult of solution, in addition to the word “ family,” to say nothing of certain or rather uncertain things called “ other articles.”

Again, the relief requested of the court is, not that the sheriff should be enjoined from selling the whole or more than a certain number of bushels of the corn, but that the sheriff and Hancock be enjoined from proceeding upon said judgment and execution. This the court has no power to do if the judgment be valid.

Judgment affirmed.