40 Tex. 153 | Tex. | 1874
The writ of error in this .case must be dismissed for want of a proper bond. The bond is not in conformity with the statute. (Art. 1517, Pas. Dig.) The case of Waterhouse v. Love, 23 Texas, 560, and numerous subsequent cases, decide the question.
Dismissed.
Opinion rendered March 10, 1873.
The case was reinstated, and, plaintiff in error allowed until next term to file a new bond, which term began on December 3, 1873.
Moore, Associate Justice. — This is an action of trespass to try title, brought by the appellant, Boggess, against the appellee Howard, to which appellee Ray, the landlord of Howard, made himself a party defendant. By agreement of the parties in the court below, a jury was waived and the case submitted to the determination of the court, by whom a judgment was rendered in favor of defendants. The record shows that appellant and appellees claim title to the land in controversy under a common source, and the only question presented for the con
On the eleventh of September, 1868, appellant brought suit in the District Court of Busk county against J. B. Littell, on a promissory note of said Littell, of which he claimed to be the bearer ; and on the second of March, 1869, he caused to be issued an ancillary attachmént against the property of said Littell, which was on said day levied upon the land in controversy. At the Spring term, 1869, of said court, it was adjudged that he recover the amount claimed, and that an order issue to the sheriff commanding the sale of the land upon which the attachment had been levied. In pursuance whereof, said land was sold by the sheriff on the sixth of July, 1869, to appellant, for the sum of sixty dollars.
The appellees claim under a deed from the sheriff to appellee Bay, as the purchaser at a sale of said land on the second of March, 1869, on an execution issued on the twenty-sixth of January, 1869, on a judgment in favor of B. Jacobs, against said Littell, by a justice of the peace of Busk county, on the fifth of March, 1859.
It is clear, therefore, as appellees have the older title, the court did not err in rendering judgment in their favor, unless the record discloses some intrinsic defect in their title, or the judgment or proceeding under it, of which appellant can take advantage, and which entitles him to hold the land under his junior title. Appellant maintains that the judgment upon which this execution issued was dormant; and as Bay controlled the judgment, and both himself and Howard were present at the sale, and heard appellant’s counsel give notice, previous to said sale, that said judgment was dormant when said execution issued, and that his attachment had been levied 'upon the land, the sale was absolutely void, or at least no title passed thereby to said Bay: This proposition involves two questions; first, was the judgment upon which
The judgment was rendered, as we have said, on the fifth of March, 1859; execution issued thereon on the sixteenth of the same month, which was returned on the sixteenth of May, 1859. Alias execution issued June 13, 1859, returned August 17, and a pluries issued on the twenty-fourth of the same month, which was returned on the twenty-seventh of October, 1859; from which time until the twenty-sixth of January, 1869, no diligence seems to have been used to enforce the judgment. But by the act to prevent judgments from becoming dormant, and to create and preserve judgment liens, which took effect on the fourteenth of February, 1860, it is provided, “ Whenever judgment shall be rendered by any court within this State, it shall be competent for said court, or the clerk of said court, to issue execution thereon at the instance of any party interested, and said judgment shall not become dormant unless ten years shall have elapsed between the issuance of executions on the same.”
As this judgment was not dormant when this law took effect, and as it includes the judgments of “any court within the State,” it certainly did not become so^ by a failure to issue execution upon it prior to the repeal of this act of February 14, 1860, by the act to prevent judgments from becoming dormant, etc., passed November 9, 1866. The third section of this latter act reads, “No judgment of a court of record shall become dormant unless ten years shall have elaped between the issuance of executions.”
Mr. Justice, Wheeler, in the case of Wahrenberger v. Horan (18 Texas, 59), says : “ Whether justices’ courts in this State are to be deemed, for any purpose, courts of record, has never been determined by this court.” And
If the judgment was dormant, however, when the execution issued under which appellees claim, while it would follow that Hay, -who seems to have had control of it, got by his purchase merely a defeasible title, which might have been set aside or avoided by a proper proceeding
The rule by which the courts are controlled in the decision of this question is, indeed if not identical with a corollary from the elementary principle recognized by the unbroken current of decision from the time of Manning’s case (8 Coke), that acts done under an erroneous judgment are valid'and binding until they are reversed. And though there is a plain and well recognized distinction between strangers and parties to such, judgments, in respect to rights acquired and acts done under them before their reversal, but as mere error which does not amount to absolute nullity cannot be connected in a collateral proceeding, it follows, until the jugdment or the proceeding under it brought in question has been reversed, set aside, or corrected, there is no practicable difference, when the matter is sought to be brought collaterally in question, whether the right claimed under it is made by a party or a stranger.
There being no error in the decision of the court below, it is affirmed.
Affirmed.