Scogins v. Perry

46 Tex. 111 | Tex. | 1876

Gould, Associate Justice.

The liability of a sheriff and his sureties to pay ten per cent, per month on the amount which that officer has collected under execution, and fails, after demand made, to pay over to the party entitled to receive it, can be enforced in no other way than by motion. (De La Garza v. Booth, 28 Tex., 482; Paschal’s Dig., art. 3781.)

The object of the statute is to provide a “ quick, simple remedy, to close a suit already determined;” and the same penalty, to which it subjects the sureties as well as the sheriff, cannot be enforced by a distinct suit on the bond, or by “ a new suit which may have all the expensive attributes of a bill in equity,” and be attended with all its delays. (Beaver v. Batte, 19 Tex., 113; Hicks v. Gray, 25 Tex., 83.)

Whilst the statute does not prescribe that the motion must be made at or before the term of court next following the demand, it may be questioned whether a party can, at his mere option, and without excuse for the delay, allow several terms of court to pass, and then claim the heavily accumulated penalty. In providing a prompt remedy, it was scarcely contemplated that it should be used oppressively, or as a means of profit.

Without, however, undertaking to say at what time the motion must be made, we are of the opinion that the fact that this proceeding was not commenced until full twenty months after the alleged demand, may well receive some consideration in determining its character.

Although the object of the proceeding was to recover the penalty as well as the principal and interest, it was in the form of a regular petition, filed apparently in vacation, setting forth at length a cause of action, praying for citation to defendants as in ordinary cases, and praying, it is true, for judgment for the penalty, but praying also for general relief. In its form, it appears to be, not a motion, which might have been filed, and, notice being served as in other cases of motion, disposed of during the same term of court, but to be a petition instituting a new suit; and, as far as the record shows, the case took its regular place on the trial docket amongst other new suits.

In view of these facts, and having in mind that a party claiming the benefit of this penal statute must bring himself strictly within its provisions, we hold that the court did not err in sustaining exceptions to so much of the petition as claimed ten per cent, per month ón the amount collected.

The judgment is accordingly affirmed.

Affirmed.