48 Tex. 13 | Tex. | 1877
We have been cited to no-statute authorizing the service of process from the District Court by a town or city marshal because the sheriff may be-a party to, or interested in, the suit or proceeding in which such process is issued. If the sheriff is disqualified- from executing process, the duty otherwise incumbent upon him, when the service here in question was had, unquestionably devolved upon one of the constables appointed for each of the-justices’ precincts of the county in which such sheriff resides. (Art. 5, sec. 21, Const. 1869; Paschal’s Dig., arts. 995, 1014; McClane v. Rogers, 42 Tex., 214.)
It is insisted, by defendants in error, that service of a character similar to that here complained of, has heretofore been held sufficient by this court. In support of this proposition, we are referred to the case of Burns v. Jones, 37 Tex., 50. The reporter, in his statement of this case, says: “The citation was served upon the defendants by the town constable of the town of La Grange, and the defendants, Burns and-wife, moved to quash the return, insisting that the officer was;
Row, although we cannot certainly determine, either from the statement of the case by the reporter, .or’from the opinion of the court, the character of the officer by whom the citation was served, it is quite evident that it cannot, with any confidence, be asserted that the court intended to hold that process from the District Court issued to a constable might be properly served by the marshal of a city, town, or village, which we must do to recognize this case as an authority in support of the proposition for which it is cited.
While there are certain duties of a similar character which :are to be performed by city, town, and village marshals, and constables, in their respective jurisdictions, there is certainly a marked difference in their character and functions. And we are not warranted in supposing that they have, been otherwise regarded or referred to in the Constitution and laws, or in the opinions of our predecessors. And although it may not be strictly accurate to call or designate one of the constables of a county the “town constable,” yet, as the justice of the peace and constable for the precinct in which the county seat or courthouse is situated, is not unfrequently referred to and spoken of as the constable or justice of the town where his court is held, we should rather infer that the objection upon which the court was passing was based upon an erroneous or defective description or official designation of the officer by whom the citation was served, than that the citation was served by a municipal instead of a county officer. At all events, we do ,not feel at liberty to make, as it seems to us, so palpable a departure from the obvious purpose and plain language of'
But it is insisted, by defendants in error, that if there was any defect in the service, such defect was waived by the voluntary appearance of the parties making the objection. Or if not, still none of the plaintiffs in, error, except Robinson, can now complain of the refusal of the court to quash the service.
The first of these propositions, relied upon by defendants in error, has been directly passed upon and decided adversely to them by this court, and it need not, therefore, be now further considered. (Hagood v. Dial, 48 Tex., 625.) And if it was conceded that no exception to the service was properly taken by or for any of the parties but Robinson, it would in no way affect the result of the case in this court on the present writ of error. There can be but one final judgment in the case. The judgment as rendered in the District Court is an entirety, as to all of the parties against whom it is entered. It cannot be reversed and remanded as to some of the parties, and affirmed as to others, as has been often held by the court.
We are not prepared to say, on this record as presented to us, that the District Court of Anderson county had not jurisdiction in the premises. If this proceeding should be regarded as an ordinary suit against the sheriff’ and his sureties for a breach of official duty, we agree with the counsel for plaintiff’s in error, that it should have been brought in the county in which they resided at the time it was instituted. But we are not warranted in saying, from the record as now before us, that it should have been, or was, thus treated or regarded by the parties or the court below. Throughout the original application, it is certainly denominated and called, by the parties instituting the proceeding, a motion. The language used by the draughtsman seems to indicate that it was intended as a proceeding under the statute authorizing a motion against the sheriff and his sureties for a breach of duty as therein charged. The citation or notice directed to the plaintiffs in
Where a- summary proceeding of this character is authorized by statute, its requirements must unquestionably be strictly followed, as has been often held by this court. And if they are not, if action by the court is properly invoked in manner and time, the rights of the parties will be fully secured and protected.
Treating this proceeding as a motion for the failure to levy an execution, we think it was properly made in the court from-which the execution issued. Language precisely similar to that in the statute authorizing this motion, has been heretofore construed by this court, and held to authorize the motion in the county where the judgment on which the execution issued was rendered. This construction, as the court says, is in accord with what is believed' to have been the long-settled practice and practical construction given the statute. (Griswold v. Chandler, 22 Tex., 637.)
For the error of the court in overruling the motion to quash the service of the citation, or notice of the motion, the judgment is reversed,- and the motion is remanded to the District Court.
Reversed and remanded.