Martin v. Rice

16 Tex. 157 | Tex. | 1856

Wheeler, J.

In Scott v. Allen (1 Tex. R. 508) it was held, that a motion to quash an execution will not be entertained after it has performed its functions and been returned by the Sheriff. The object of the motion here, however, was, to quash the return and set aside the sale ; and so considered, we are of opinion, it was rightly overruled. It is sought to maintain it on two grounds—

1st. That the execution was not issued within a year from the rendition of the judgment.

2nd. That the property of the plaintiff in error was pointed out by his co-defendant.

The first ground is unsupported by the record. After the judgment of affirmance, executions were regularly issued, up to the present, which was the third. Whether they were erroneous, in that they included the defendant in the original judgment, who was not a party to the judgment of affirmance, it is not material to inquire. It maybe admitted that they were so, in that they did not distinguish the amounts for which the defendants in execution were severally liable. They should have directed the officer to make the amount of the original judgment out of all the defendants ; and the amount by which the judgment of affirmance exceeded the original judgment out of the defendants in the judgment of affirmance; they alone being liable therefor. But this was but an error in the executions, which did not render them void. They were regularly issued, upon a valid, subsisting judgment; in full force and vitality, at least as to the plaintiff in error, and his co-defendants in the judgment of affirmance ; and though erroneous, they were not, on that account, to be treated as nullities. Nor was the error one of which the plaintiff in error can complain. As to him and his co-defendants in the judgment of affirmance, there was no error. The executions accurately described the judgment j and these defendants were liable for the full amount which was directed to be made off them.

The motion did not question the regularity of the last' execution, on the ground that it did not include the defendant in the original judgment, who was not a party to the judgment of affirmance ; nor has the regularity of the executions in that respect been questioned in argument here. Whether, regularly, he should not have been included, not having been made a question by the motion in the Court below, is not a question here. It is unnecessary therefore to express any opinion upon that point. If he had been included, it is clear his co-defendants in execution could not have complained of it; inasmuch as they were rightly included, and could not. sustain any injury’ by reason of his being also included. If erroneous, he would have been the only party affected by the error; and, consequently, the only one who could take advantage of it. From the reasoning of the Court, in Turner v. Smith, (9 Tex. R. 628 & 9,) it would seem that he was properly omitted. But it will be observed, that, in that case, the parties who were omitted in the execution had died. Execution could not legally issue against their estates ; and the question was not before the Court, as to what would have been the effect of omitting to include them in the execution, had they been living at the time it was issued. Nor is the question before the Court in the present case, as we have seen, so as to require the expression of an opinion; not having been raised by the motion.

Upon the remaining ground of the motion, it is only necessary to say, that the plaintiff in error, who was the principal in the judgment, having refused to point out property, it became the duty of the officer to find property, if he could, whereon to levy the execution; and it was the right of the sureties in the judgment, to aid him in finding the property of the principal, if they saw proper, for their own protection. He might have made the levy without calling upon the sureties; and he might adopt their designation of the property of their principal whereon to make the levy. (Bryan v. Bridge, 6 Tex. R. 137.) The judgment is affirmed.

Judgment affirmed.