The Houston daily post. [volume] (Houston, Tex.) 1886-1903, 1896-02-12
SUPREME COURT RULINGS.
Syaopscs Of Decisions Handed Down
ct the Last Sitting.
I'll PAS0 NATIONAL BANK CASE.
No BreEch OF Contract sh,wn-Troperty
Acquired by Decree of Divorce Sub
jet to Forced Sale.

ERNESTO FUCHS; suit TO recover
damages for the conversion OF 5000 OF
Mexican money from II Paso county, |
Fourth district-Reversed ana rendered. |
In july. 1873. Fuchs, plaintiff below. de-
posted 5000 of Mexican money In the FL
paso National bank OF Ell Paso, Texas.
Subsequently L. Il. Bronson. president Of
the bank transferred this money to a
bank in Mexico OF which he was the presi
don't. This transfer was made without
tae consent OF Fuchs. and both the Texas
and the Mexican bank failed after /, was
made
Fuchs sued the Ell Paso bank. repre-
seutcd by its receiver L. Z, Bronson, It's
president. and W. II. Austin. its cashier;
aud procured a writ Of attachment 10 be
levied upon certain real estate the prop
cry OF Bronson and Austin The trial
court save judgment against the bank
and against bronson. and torcclOsei tne
eitd. hneul Hen upon tne properly OF
bronson, hut give Judgment IN favor OF
Austin against the plalutu. This Juds-
mtlt was affirmed by the court Of civil
appeals and the only question Is, was the
ciaim sued on such Il debt as would
euthouze the issuance of writ OF at
ttcuMtntl
Tie writ Of attachment IN this case
was issued under articles l52 ana lo5, Rev
slal In order 10 authorize It's issuance the
plaintiff is required by the statute TO
deOtrd TO him and must state the
amount of the demand " hat is The mean
lng OF The words debt and creditor
as used In the statute2 "The remedy
hf attachment is special and eNtracrdi-
nary. and the statutory provision for II
must pe strictly construed aud can not
terms lSuth stat CON. Art 1873
Under the facts of this case IL Is plain
/ that there was no contract between
pla,uuu and the defendant Bronson
Plaintiff deposited his money with the
i.l luso bank, of which Bronson was
president. and Its receipt WAS ackuow-
dyed uy Bronson in his official capacity.
lhe bank was bailee Of the money. Bron-
/ SON. personally, occupied no such relation
to the plaintiff and, unless the law iu
some way implied a contract on his part
90 pay TO the plaintiff the value of his
money when he committed the tort by
removing It from the bank IN which It
not he claimed TO be founded upon con
trart
3 There was no contract between the
plaintiff and Bronson, either express or
| implied. Bronson did not convert the
money to his own use He derived no al
vantage from it, and therefore under
The authorities, no implied promise arose
on ms Part to pay the value of IT, Tho
fact that the same measure OF damages
would apply as IN the case of breach of
contract can not affect the question. Under
our statute IT may be clearly and
definitely stated that no writ OF attach
iucnt can issue upon any cause Of action
gan only issue when the amount claimed
Us Due upon contract express or implied,
and that such writ can only issue in this
| class of cases when the amount due may
~ ascertained with certainty under the
contract
Tho Judgment Of the courts below will
he reversed and here rendered as follows
The writ of atts chment against bronson
| IL quaahcd. and his property discharged
tr ,,,.l The levy Thereof, plaintiff IS given
courts below. and the costs are udiudged
against defendant in error
Opinion by Brown ].
C. a. Balm VS.. Il. j. sTARKE: certified
question In a case from Travis county
Third disulct-Answered In favor OF
Appellant Balm.
Hahn claimed the land In controversy
through an execution sale. Mrs. Starke
claimed that this sale was void because
the land was her homestead The land in
controversy had been set apart to Mrs
StarSe in a decree Of divorce she being
the divorced wife of \, Balm
| Question; when the homestead is, In
a decree OF divorcemcnt, set aside 10 the
divorced wife. she owning no other real
estate, for her own exclusive use during
her life, she occupying and continuing
to occupy it as IL home is the property
| protected as her homestead (she having
no family from forced sale in favor Of
her creditors, under judgment and exeou-
| ton against her subsequent to the decree
OF diVorCcP'
The question is answered in the noga-
| tive The simple ques ton toy our deter
| minalion rs, W ~ the property acquired by
| the decree of divorce subject TO forced
sule for the payment of appelecs debts
] contracted after her tiiVurccp The di-
| Vorcc destroys the particular family the
| eNistcncc Of which gave rise TO the ok
| rmption, and hence destroys the right OF
] ls.A,V a
! families may be created by Il divorce, or
| they may be created by the subsequent
marriage OF the parioe Such families
! would each have the right OF exemption.
! but 1t proceeds from the existence OF the
! new relation and not from that Of tn
| old. The title acquired by appellee i'm the
| property in controversy was an original
| title ana dld not come TO her as home
| stead AZ the very point at which she
acquired II she became single woman
and was no longer a constituent of a
family. The court had no power to de
| cree 10 her HE estate IN the property
on the ground that it was the homestead
OF the family. II is not clear whether
the decree attempts to do this or not
The use Of the word homestead I'm the
pose Of description and not for the pur-
| pose OF fixing the quality of interest or
estate In the property,
"ln short, ON. conclusion Is that since.
at the time OF the levy and sale. the APP
pencc had no family section so, article
~ OF the eonaututim ala not exempt
the property; that section W does not az
feet tho case because 1t does not, as to
a succession to the homestead right ap-
ply TO cases OF divorce. aud that the court
that granted the divorce had no power 10
transfer the exemption if Il attempted L.
do so, The Property was not therefore
opinion by Gaines, {. ].
M1LRuRN MANUFACTURING COM
rANY VS.. FLORENCE PEAK. certified
question in case from Tarrant COUNTY,
Second liEtvlet- An. vIrp1 n ma gf,g