39 S.W. 917 | Tex. | 1897
The Court of Civil Appeals for the Fourth Supreme Judicial District has certified to this court the following statement and question:
"George S. Leachnian applied to the judge of the 44th Judicial District of Texas, in and for Dallas County, for a writ of injunction to restrain the sale of certain real and personal property belonging to said Leacbman, which was to take place by virtue of an execution issued out of the District Court of Tarrant County, under a judgment in favor of Capps and Cantey and against said Leachman. In the petition it was alleged that the execution was Yold because, on its face, it showed that it was a third execution issued upon said judgment and it is not shown what disposition was made of the other executions, or what the returns were thereon, or that the same were returned unsatisfied, and further said execution does not show out of whose goods, chattels, lands and tenements the said sheriff is commanded to make the money called in said judgment, only commanding the sheriff, 'That of the goods and chattels, lands and tenements of the said __________, you cause to be made the sum of nineteen hundred and twenty-nine dollars and ninety cents,' and does not show whose goods, chattels, lands and tenements are to be seized to satisfy the said judgment and does not sufficiently describe the judgment, or show whether it was rendered in 1893 or 1894, and does not contain an itemized bill of costs. It was further represented that the Teal estate levied on under the execution was the business homestead of Leachman.
"The following facts were in proof on the trial: *501
"State of Texas, County of Tarrant: No. 7246.
In District Court, __________ Term, 189___.
The State of Texas,
To the Sheriff or any Constable of Dallas County, Greeting: WHEREAS at the February term, 1894, of the Honorable District Court of Tarrant County, Texas, on the 27th day of February, 1894, Wm. Capps and S.B. Cantey, plaintiff, recovered judgment against G.S. Leachman, for the sum of nineteen hundred and twenty-nine and ninety one-hundredths dollars and all costs of suit, as of record is manifest in Minute Book 3, page 321, of the minutes of said court.
This is the third execution issued in this case.
THEREFORE, You are hereby commanded that of the goods and chattels, lands and tenements of the said __________ you cause to be made the sum of nineteen hundred and twenty-nine dollars and ninety cents, with interest thereon at the rate of twelve per cent per annum from the date of the rendition of said judgment until paid; and the further sum of, eighteen dollars, costs of suit and the further cost of executing this writ."
"The execution did not show what disposition was made of the former executions, or what returns were made thereon, or that the same were returned unsatisfied. No bill of cost was attached to the execution; otherwise the endorsements were such as are required by law to be made.
"When the said execution was read in evidence it was agreed by and between the parties that it was by virtue of same that the defendants herein levied on the property in controversy, and that they had no right, interest, or title to the same, in any manner, except by virtue of such levy, and thereupon the court announced that in its judgment the execution was void, and the judgment would be rendered for the plaintiff as prayed for, without regard to any other issue in the case, and upon this understanding the case was submitted to the court without further evidence, the plaintiff offering to show that the property in controversy was also his homestead, but the court declined to hear any evidence on this issue stating that it would not affect his decision, as in his judgment plaintiff was entitled to judgment because of the invalidity of the writ of execution."
QUESTION: "Was the execution void for any of the reasons set forth in the petition?"
To the question, we answer, the execution in this case was void because it failed to name the person whose property was to be subjected to its satisfaction.
Article 2338, Revised Statutes, after prescribing the formal matters connected with the issuing of an execution, provides as follows: "It shall correctly describe the judgment, stating the court wherein and the *502 time when rendered, the names of the parties, the amount, if it be for money, and the amount actually due thereon, if less than the original amount, the rate of interest, if other than six per cent, and shall have the following requisites: * * * * 2. If the judgment be for money simply, it shall require the officer to satisfy the judgment out of the property of the debtor, subject to execution."
It will be observed that the foregoing article of the Statute prescribes, as a requisite to the execution that it shall require the officer to satisfy the judgment out of the property of the debtor and it must have intended that the debtor's name should be given in the body of the writ. Douglas v. Whiting,
There is in this State a line of decisions which we think sustain the answer we have given, although they cannot be said to be directly in point. We cite the following: Cleveland v. Simpson,
Appellant's counsel urge that the officer must have known from the execution, in the form it was issued, that the money was to be made out of the property of the defendant in the judgment as it could have been lawfully made out of the property of no other person. If the Legislature had intended to commit to the sheriff or constable the authority to, determine upon whose property he should levy the execution, then all that would be necessary to make a good execution would be to describe the judgment as required in the article quoted and it was useless, to express in the law that there should be other things added which were requisite to the validity of the writ. The statute in this particular is mandatory and explicit in its command, and a failure to comply with its terms cannot be classed as an irregularity. *503
