25 Tex. 82 (Tex. 1860), Hicks v. Gray
|Citation:||25 Tex. 82|
|Opinion Judge:||ROBERTS, J.|
|Party Name:||H. C. HICKS, ADM'R, v. W. B. GRAY AND OTHERS.|
|Attorney:||Rock, for the appellant. B. C. Franklin, for the appellee.|
|Court:||Supreme Court of Texas|
Where there is no final judgment, no notice of appeal, nor petition for writ of error, the case will be dismissed at the cost of the party who files the record in this court.
A motion against a sheriff for failing to levy and to return an execution, is not an original suit, but a continuation of the proceedings under the judgment on which the execution issued.
The statute provides that such motion may be made by the " plaintiff; " a new party cannot be introduced into the suit by such summary motion, filed in his own name, claiming to enforce the plaintiff's remedies as the assignee of the judgment. 19 Tex. 111; 28 Tex. 478.
APPEAL from Tyler. Tried below before the Hon. James M. Maxcy.
This was a motion filed by H. C. Hicks, administrator of the estate of John H. Ford, deceased, against W. B. Gray, sheriff of Tyler county, and his securities, for failing to levy and to return an execution which had issued on a judgment in favor of Martin Doyle against A. J. Sapp and others for $328.71, with interest, claiming to be the assignee of the judgment in right of his intestate, to whom he alleged Doyle had transferred or assigned it, for a valuable consideration.
Judgment was rendered in favor of the defendant for the costs of suit, without any recital or decree that the plaintiff " take nothing by his suit," or words of equivalent import in dicating the finality of the judgment.
There is no final judgment disposing of the case; nor is there any notice of appeal or petition in error contained...
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