Beaver v. Batte

• Decision Date: 01 January 1857
• Citation: 19 Tex. 111
• Parties: BENJAMIN BEAVER v. WILLIAM B. BATTE.
• Court: Texas Supreme Court

19 Tex. 111

BENJAMIN BEAVER

v.WILLIAM B. BATTE.

Supreme Court of Texas.

1857.

A motion against a sheriff, under the statute (Hart. Dig. art. 1333), for failing or refusing to pay over money collected under an execution, when demanded by the person entitled to receive the same, cannot be made in the name of a stranger to the execution, to whom the party entitled to receive the money has given an order for it, or assignment of it. [4 Tex. 356;15 Tex. 106;25 Tex. 82.]

It would seem that such motion cannot be sustained by the proper party, as to principal amount even, unless a previous demand be shown.

Appeal from Titus. Tried below before the Hon. William S. Todd.

The facts are stated in the opinion.

W. H. Johnson and J. P. Hill, for appellant.

T. J. & J. H. Rogers, for appellee, cited Story on Agency, sec. 393, and note 1, and authorities there cited; Id. 394 et seq.; 1 Chit. Pl. 7, and note 3, and authorities there cited; Id. 8; 3 Johns Ch. 263;7 Cow. 174. Demand was not necessary, there being no penalty incurred.

ROBERTS, J.

This is a motion for a rule against the sheriff, Beaver, to compel him to pay the balance in his hands, raised by the sale of a lot under an execution against Hill, on an order from Hill to pay the same to Batte. Said money was a surplus in his hands after satisfying an execution against Hill, in favor of Wilks, Hood & Black.

Beaver filed exceptions to the motion for the rule, in which he “denies plaintiff's right in law to proceed against him in this summary way by motion; but that said right only exists in favor of the party entitled to the money from the process addressed to him as sheriff,” etc.

The sections of the statute upon which this motion is made, and upon which these questions arise, are as follows: Hart. Dig. 418.

“ART. 1329. That if, on the sale of the property, more money is raised than is sufficient to pay the amount of the execution or executions in the hands of the sheriff or other officer, the surplus shall be immediately paid over to the defendant, his agent or attorney.”

“ART. 1333. That should any sheriff or other officer fail or refuse to pay over money collected under an execution, when demanded by the person entitled to receive the same, he shall be liable to pay ten per cent. per month on the amount so collected, besides interest and costs, which may be recovered of him and his sureties by motion before the court from which said execution issued, three days' previous notice being given.”

It may be very well doubted whether the statute contemplates the defendant in execution, at all, as a party upon whom is conferred the right to this summary and penal remedy. It has been decided by this court that the statutes authorizing summary proceedings against sheriffs are to be strictly construed, and that every fact necessary to a recovery must appear upon the record. Hamilton v. Ward, 4 Tex. 356;De Witt v. Dunn, 15 Id. 106. Admitting that this remedy be extended to the defendant as well as plaintiff in an execution, can the defendant, by any instrument and upon consideration, so assign his interest in the funds in the hands of the sheriff as to authorize the assignee to make the motion in his own name? We think not. Such motion must be made in the court from which the execution issued. Hart. Dig. art. 1333; DeWitt v. Dunn, 15 Tex. 106. It is founded on the record of the case in which it is made, and should necessarily correspond with the parties to the record. To hold the contrary would subject the sheriff to any number of motions by different assignees of the same fund in his hands, and make him determine, as between them, the superior title to it, under a penalty of ten per...