Fuller v. Sparks

39 Tex. 136 | Tex. | 1873

Ogden, P. J.

There is no such error in the judgment -of this case as will require a reformation of the same. The judgment obtained in the magistrate’s court was a •subsisting and binding judgment until set aside or reversed on an appeal; and the execution issued upon that judgment was a sufficient authority to the officer making the levy, provided the property levied on was liable to be seized for the satisfaction of the judgment. But an officer who levies upon property not subject to be seized for the satisfaction of the execution in his hands, whether the same be the property of a third person, or whether it belongs to the judgment debtor, and is not subject to forced-sale, does so at his peril; and the party who is injured, by such unlawful seizure is not compelled, in order to-protect his rights, to resort to the remedy by injunction,, but may bring his suit directly against the officer for damages. There is nothing in the objection raised to the authority of the special constable. He was appointed under the forms of the law, and is not liable to an action of trespass, as acting without authority.

• There can be no doubt that the horses levied upon, or at least some of them, were subject to seizure under the execution, as the evidence clearly shows that the judgment debtor had at least five horses, while she was not entitled to claim more than two as exempt from forced sale. The law evidently intended to protect to each family, exempted from forced sale, a team of two horses, to be used for the convenience and support of the family y and it would be but right and proper that the head of the family should have the privilege of selecting from among a number of horses, cows, or other exempted property, where there are a number of one kind, such as might be deemed most useful to the family, provided such selection were done notoriously and in good faith, and unaccompanied with an attempt thereby to cover up or hide other property from the officer seeking a levy. Had Mrs. Fuller, at the time the constable came to make the levy, made her selection, and pointed out to him the two. animals she wished to hold*as exempt from the levy, and also pointed out to him the remainder of the horses she-owned which were subject to be levied upon, the law would have protected her in that choice; and the officer would have been liable for damages had he disregarded her rights thus made known to him.

A merchant has no right, under any circumstances, to-divide his book or store account into two parts, so as to-bring either within the jurisdiction of a justice of the peace, and then bring a suit on each. This would be a> fraud upon the jurisdiction of that court, which would not be tolerated. But a party who has an account against another, which exceeds the jurisdiction of a justice’s court, may receipt that account, if he chooses, for all that exceeds that jurisdiction, and bring one suit on the-balance due; and this was, in effect, what was done in the-case which was the origin of this suit. There may be-errors in the charge of the court, but, from a careful examination of the transcript, we are of the opinion that the-errors, if any, did not mislead the jury, as substantial j ustice appears to have been attained by the j udgment of' the District Court, and it is affirmed.

• Affirmed .