1 Tex. 508 | Tex. | 1846
It has been contended by the appellee, that only one question is brought up for revision in this case, and that is, whether the execution should be quashed or not; that the question as to the levy and return is not presented; that the record of the judgment uses the word motion, and by strict grammatical construction, it could embrace but one motion; and that it would be left uncertain, as to which of the two motions were intended to be operated on, but then, they both appear to have been before the court and the bill of exceptions shows that they were both overruled. The only construction we can give the judgment and give to it any effect is to make it embrace both motions. There is certainly a manifest distinction between quashing an execution and annulling or setting aside the leyy and return thereon; for the power of the court may well be questioned to
On a motion to quash, annul or set aside a levy made on the return on the execution, we may look to the execution and see if it carries on its face sufficient warrant for such levy and return. We may look back to the judgment, not for the purpose of reversing or of reform
By the common law, if no execution was sued out within a year and a day from the judgment, none could be taken out at all, and the plaintiff was compelled to commence a new suit on his judgment and obtain another judgment before he could have execution. This was altered by the statute of Westminster, and the writ of scire facias was given to revive the judgment. The common law was introduced into Texas by the act of congress, approved 20th January, 1840. At the date of the passage of this act, there was no law in force in this country that contravened the common law rule as to the time in which an execution could issue on a judgment, and consequently the common law from that time governed, until altered or modified by statute. The only modification seems to be by the act known as the limitation law, approved 5th February, 1841, by which, if no execution has issued on the judgment within the year from the rendering of the judgment, such judgment may be revived by scire facias or action of debt brought on it, at any time within ten years. If this was the original execution, it was sued out too late and was void, and consequently the levy and return were a nullity. If an execution had been sued out within a year by the common law, it could have been continued to an indefinite term by the issuance of other executions, but these were distinguished as an alias and yyl/uHes, and then by number. The face of the execution showed whether it was the first or not. That this was the common law practice, a reference to any book of forms will show. The mandate in the body of the process of an alias, being the first after the return of the.original, is “you are commanded as yo%i have been before.” To those that succeed, the mandate is, “ you, are commanded as you have been often before.” To test the execution on which the levy and return under consideration were made by these rules, it is subject to two objections: That from its date it is inoperative and void and cannot sustain the
The first execution was levied by the sheriff. He returned that he had made the levy on certain land pointed out by the defendants, but that the plaintiff not attending to select an appraiser, he could not get any person to act as an appraiser, and he did not offer the property for sale. A similar return was made on the second and third. Ho ap-praisement was made of the property levied on by them, and no offer to sell. The plaintiff seems to have neither attended the sale for the
If the defendant in execution fails to exercise the privilege offered to him by law, of pointing out property in the first instance, the course to be pursued by the sheriff is a clear one. He should in that event levy on such as he could find belonging to the' defendant, observing the order pointed out by the statute, first on personal property, excepting slaves, then on unimproved lands, then on slaves, and lastly on improved lands, provided such different kinds of property, belonging to the defendant, could be found in the county; if not, then on such as could be found. Sec. 4, act above. This would be his course if the property levied on and appraised should not sell for two-thirds its appraised value, when he went to make the second levy, provided the defendant failed to point out other property than that first shown and offered for sale; but these are rights that the defendant cannot be deprived of, if he chooses to exercise them. The plaintiff’s right to point out property does not depend on the number of executions that may have been issued, but upon what has been done. If the defendant has had the privilege of twice pointing out property — of appraisement and offer of sale under the same execution, the plaintiff’s right to point out would accrue on the second; when this had occurred, all those facts should appear on the sheriff’s return on the first execution. The execution is always required to be returned to the succeeding term of the court from the time of its issuance. This would give time to make two trials of sale of the property designated by the defendant. If he has not had his privileges on the first execution, he should have them on the succeeding. The return of the levy on the execution last sued out shows that it was made on property pointed out by the plaintiff; the other executions and the return thereon show that he had no right to point out property, because, upon that designated by the defendant and levied on by the first execution, the levy and return are not supported by law, and ought to be quashed. There is some ambiguityin the statute referred to, such as the run of the same execution, when it is obvious that by a literal construction it would be wholly inoperative, as it refers to a period to which the same execution could not
It will be seen that it is more important under our laws that strict regard should be paid to the grade of the execution, and the special manner in which it has been executed, than in England, because different rights depend on them. JSTow in case the defendant chooses to exercise his rights, in no event could the plaintiff have a right to point out on the first execution; at what subsequent stage he could do so depends altogether upon what had previously been done. In all the other cases depending on a similar motion, the irregularity is still greater than in this, as in this case the sheriff made a return, unknown to the law it is true, but it had given some effect to the process; it had been levied and that levy attached a lien, until discharged by the due course of law; that is to say, until there had been an' offer to sell under an appraisement, and a failure, and other property levied on. But in all the other cases against the defendants, there had been no return at all until the return on the fourth execution. To refer to an execution in another suit, and say the same return, cannot be recognized as a return. Seldom has a case been presented in which so many irregularities appear to have been committed by the cleric and sheriff. Because, therefore, the motion to quash the levy and return of the sheriff in this case ought to have been sustained, the judgment of the court below is reversed and the cause is remanded, with in-strutions to the court below to enter a judgment in the said motion, quashing the levy and return made by the sheriff.
[The cases of Scott & Rose v. Tarrant, the Same v. Martin, the Same v. Latimer, and the Same v. Young, depending upon the same principles, were submitted to the court upon the argument made in this case, and the same judgment was rendered in each.]
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