58 Tex. 447 | Tex. | 1883
The motion to quash the execution came too late, even though it had been made by the defendant in execution. The execution had been returned, and the motion was filed after the return day of the execution. The execution was, in fact, returned and actually filed in court before the motion was entered. Scott & Rose v. Allen, 1 Tex., 508.
The claimant was not entitled to assert .the invalidity of the execution (it being against another person) unless it was void. Portis v. Parker, 22 Tex., 707; Hancock v. Hetz, 15 Tex., 205; Webb ’v. Mallard, 27 Tex., 80. Hpon its face it is not void for either of the reasons assigned in the motion. As copied in the record, it purported to have been issued under the seal of the court duly affixed; and so far as concerns the first ground of the motion, it has been repeatedly decided by the supreme court that an execution is not void because issued on a dormant judgment; that it is voidable merely. Boggess v. Howard, 40 Tex., 158, and several cases cited from our reports. See also Riddle v. Turner, 52 Tex., 150.
Defects only that are apparent on the face of the execution and records on which the questions presented under the motion arise can be reached by the motion to quash. Hill v. Cunningham, 25 Tex., 32.
There is neither statement of facts nor bill of exceptions in the record to show anything more than the pleadings of the parties.
It is clear that no evidence c,ould have been adduced on an issue like this — an issue which was required by its very nature to be determined upon the face of the record as a question of law — which could warrant a judgment of dismissal of the cause.
Our conclusion is that the court erred in sustaining the motion to quash the execution, or in holding, if it were obnoxious to the first ground urged in the motion against its validity, that such defect could be rendered available by the defendant in this action to dismiss the proceedings under the levy.
The proper mode of raising questions like those presented in the motion to quash is to do so by direct pleading, as by exceptions filed in the nature of a demurrer to the sufficiency of the execution, in case the supposed defect renders it void, or by tendering an issue of fact under the direction of the court as to the validity of the execution as against third persons. The record in this case suggests the idea that the parties and the court treated the motion as presenting an issue of fact, which was determined upon its merits upon a hearing by the judge, with evidence adduced upon the issues made by the motion. A motion to quash an execution for specified reasons of invalidity is not such a pleading or paper as furnishes a basis for such course of proceeding, and hence no intendment can be indulged to support the judgment upon facts proven, notwithstanding there is no statement of facts nor bill of exceptions. Under the motion the questions were triable only upon the face of the record, and it is apparent from it that the execution was issued under the seal of the court; and as a matter of law, so far as the objection is made on account of the dormancy of the judgment, we have seen that the defendant cannot invoke it in his favor.
The judgment ought to be reversed and the cause remanded.
Reversed and remanded.
