Weems v. Sheriff of Brazoria County

48 Tex. 481 | Tex. | 1878

Gould, Associate Justice.

The record in this ease commences with a motion against the sheriff of Brazoria county, without naming the person then filling that office, and without ¡anywhere naming or indicating the individual made defendant, winds up with an appeal bond payable to “said sheriff.” The motion alleges the recovery in the same court by Weems, in the case of Weems v. Goss, of a judgment subjecting to the payment thereof certain" land, alleged to have been mortgaged by one Bes (since deceased) to Weems, and v subsequently to have been conveyed to Goss; that said land was accordingly sold by J. W. Yerby, then sheriff of Brazoria, and 'bought in by Weems, to whom it is alleged that Yerby made a deed which, by mistake, recites that the sheriff levied on the land "as the property of Goss, and sold all the right, title, and interest of Goss at the date of the levy, when in fact it is alleged the sale was made in obedience to said judgment or decree ordering the sale of all the right, title, and interest •. which the said lies had in and to said land at the date of the execution of said mortgage." There was no answer to this motion, but on the hearing thereof it was overruled by the court, and thereupon Weems appealed. The record contains a statement of facts, embracing the judgment in the case of Weems v. Goss. That judgment contains no mention of Bes whatever, nor is there in the statement of facts, or in this record, anything to show that the facts were as stated in the .motion. If the case were properly before us, the record fails .to show that the court erred in refusing the motion.

But we are of opinion that the entire procedure is irregular, for want of a proper party defendant, and that for this reason, and for want of a proper appeal bond, the case must be dismissed. If the proceeding be regarded as a motion in the case of Weems v. Goss, then certainly Goss was a necessary party to the motion, and the appeal bond should have included Mm. We know of no precedent. _or authority for entertaining the motion as an original proceeding against some unnamed and undesignated person, as sheriff.

The case is dismissed.

Dismissed.