3 Tex. 26 | Tex. | 1848
delivered the opinion of tbe court.
This action was brought to recover a certain lot in the town •of Washington. The plaintiff claims title by virtue of a purchase, at sheriff’s sale, of the property sued for. The defendant ■claims by purchase from oue of the defendants in execution prior to its issuance. There was a verdict and judgment for the defendant, from which the plaintiff appealed.
It appears, from the record, that on the 17th day of March,
The most important inquiry is as to the validity of the first execution after such a lapse of time; and, in the prosecution of this inquiry, it will be necessary to examine our laws regulating executions.
The 12th section of an act concerning executions, passed on the 5th February, 1840, provides “that whenever final judgment shall be rendered by the súpreme, district or county courts of this republic, it shall operate as a lien on all the property of the defendant, situated and being in the same county where judgment is rendered, from the day of the date of the judgment: provided, that said lien shall cease to operate, if execution be not issued out within twelve months from the date' thereof, and due- diligence be not used to collect the same ” [Acts 4th Cong. p. 95.]
The first part of the 2d section of the act of limitation, passed the 5th February, 1841, provides “ that judgment in any court of record within this republic, where execution hath not issued within twelve months after the rendition of the judgment, may be revived by scire facias, or action of debt brought thereon, within ten years next after the date of such judgment, and not after.” [Acts 5th Cong. p. 164.]
The above are believed to be the statutory regulations in re
The act we have cited seems to be imperative, and without any conditions or qualifications, that the lien shall cease to operate if 'the execution is not sued out within twelve months from the date of the judgment; and, if literally taken, would not admit of any excuse — not even if the party was restrained by an injunction from issuing out his execution. It cannot be denied that the law-making power could, if disposed to exercise such power, require that a judgment should lose its lien if the plaintiff failed voluntarily or involuntarily to sue out his execution within the twelve months; but we cannot believe that such was the design of the legislature in the passage of the acts cited. If bond and security was given by the defendant in the judgment in double the amount of the judgment, an appeal was a matter of right [see 15th section of the act establishing the district court, and defining its powers and jurisdiction. Laws of the State, vol. 1, p. 208]; the appeal, when so taken, and the security given, superseded all proceedings on the judgment in the court a quo the appeal was taken. It is said that the bond for the appeal was not in the terms of the law; that it was' a nullity, and ought to have been so treated by the plaintiffs in the execution. As it has been presented to us, it is certainly informal and very defective. The most prominent defect is in the description of the judgment, from which the appeal has been taken. This is, however, in the conditional part, and per
We will inquire if such diligence was used in the ease under consideration.
In the act to organize the supreme court, and define the powers and jurisdiction thereof, section 7 provides: “In all cases taken to the supreme court, in case the copy of the record in the cause below shall not be filed with the clerk of the supreme court on or before the first day of the term to which such case was taken or returnable, it shall be lawful for the court, on motion of the defendant in appeal, and oil producing a copy of the citation duly served on- the defendant, to dismiss the cause; but the same may be reinstated, at any time •during the term, if good cause be shown, to the satisfaction of the court, why a copy of the record was not filed in due time.” [Laws of the Republic, vol. 1, p. 80.]
At the return term of the supreme court, the plaintiffs in
There is another point made in the appellant’s brief that it may be well to notice: it is, that the judge erred in submitting the validity of the execution under which the appellant claimed to the judgment of the jury; thereby declining to respond to a question of law, and leaving it to be decided by the jury. The record, it is believed, does not support the assignment, and that the counsel has been misled by taking the reasons assigned on a motion for a new trial for the statement of facts. The bill of exceptions does not show any such decision by the judge nor is it anywhere to be found but in the motion for a new trial. This motion was overruled because, perhaps, the judge had not given such charge.
Judgment affirmed.