22 Tex. 637 | Tex. | 1859
F. W. Chandler, the defendant in error, recovered a judgment in the District Court for De Witt county, against
It does not become necessary for us to inquire into the correctness of the ruling of the court upon this exception, inasmuch as the defendant in error appears to be satisfied with the judgment as it was rendered. The other defendants to the motion, pleaded to the jurisdiction of the District Court for De Witt county, alleging that they were all residents of the county of Gonzales, and entitled to be sued in that county. The court overruled the plea to the jurisdiction, a jury was waived, and the parties submitted the matters in controversy upon the motion, to the court. Judgment was rendered against the sheriff and his securities, for the amount of the judgment against Guichard and Eorbes. It is relied on as error, that the court overruled the plea to the jurisdiction; and that the judgment of the court is erroneous, because the evidence showed that the defendant in execution, Guichard, upon whose property it was intended that the execution should be levied, was insolvent; and that the plaintiff in the execution had, in fact, suffered no loss from the sheriff’s neglect to return the same.
Upon the question of jurisdiction, we are of opinion that the motion was properly made in the District Court for De Witt
The 3d section of the District Court Act of 1846, provides, that “all civil suits in the District Court, shall be commenced by “petition,” &c. If the proceeding against the sheriff, for failing to return an execution, had been regarded as an original suit, it would have been placed upon the same footing with other original suits. But the intention of the law was to furnish a summary remedy against the officer, and it was therefore provided that he might be proceeded against by motion, upon giving three days’ notice. In considering questions like the present, it is not to be left out of view, that the sheriff assumes
Upon the other point, we are of opinion that the evidence is not sufficient to exonerate the sheriff from liability, on the ground that the plaintiff in the execution suffered no loss. The execution shows, that a levy was made on land; the evidence also shows, that there was a sale. One witness states that, in his opinion, the money could have been collected. Other witnesses state, that the defendant, Guichard, was hopelessly insolvent; but they do not say that the money could not have been made on this execution. A debtor may be hopelessly insolvent, and yet a diligent judgment creditor may make his money upon execution, if officers of the law do their duty. It is not enough to exonerate a sheriff, to show that one against whom he has an execution, is insolvent. He must show that the money could not have been collected upon the execution in his hands, by the úse of proper official. diligence. This is not satisfactorily shown by the evidence in this case.
The defendants in this motion also attempted to show, that the judgment against Guichard and Eorbes was not a valid judgment, because of the insufficiency of the service. It is
The judgment of the court below is affirmed.
Judgment affirmed.