18 Tex. 510 | Tex. | 1857
In the rendition of judgment, the Court evidently proceeded on the ground that the insolvency of the defendants in execution, and the fact that the plaintiffs had sustained no injury by reason of the default of the Sheriff, did not affect their right under the Statute (Hart. Dig. Art. 1346) to have judgment against him and his sureties for the full amount of the debt, interest and costs. The judgment can only be supported on the ground that the Statute fixes absolutely the measure of the plaintiffs’ damage ; and it makes no difference that they have not been injured by the default of the Sheriff; they are entitled to their judgment irrespective of the question of injury. If this view of the law be correct, it would make no difference, though after the issuance of the execution, the debt bad been paid. The principle upon which the liability of the oEcer is made to rest, would apply as well to that case as the present. The contrary, however, was decided in the case of Hamilton v. Ward. (4 Tex. R. 356.) The primary object of the Statute was held to be to give compensation to the party for the injury occasioned by the default of the oEcer ; and where no injury had been sustained, it was held, there could be no right to compensation. Accordingly, it appearing that after the default, the plaintiff had been paid his debt, it was decided that
Where, under Statutes similar, perhaps, to ours, the insolvency of the judgment debtor has not been admitted as a defence, or in mitigation of damages, the party who would proceed against the officer for a failure to return the execution is
Reversed and remanded.
The proceedings in this case were commenced by a formal petition, filed in vacation ; and the defendants were cited as in ordinary cases. In the margin of the Transcript, at the commencement of the petition, the word “ motion” was written, with the date of filing, and signature of the Clerk. The defendants, in their answer, denominated this first paper as “ the petition and notice of motionin the statement of facts it was called “plaintiffs’ notice of motion or' petition.” Smith was not Sheriff when this proceeding was commenced.—Reps.