Blanscet v. Palo Duro Furniture Co., 4154.

• Decision Date: 12 February 1934
• Docket Number: No. 4154.,4154.
• Citation: 68 S.W.2d 527
• Parties: BLANSCET v. PALO DURO FURNITURE CO.
• Court: Texas Court of Appeals

68 S.W.2d 527

BLANSCET v. PALO DURO FURNITURE CO.

No. 4154.

Court of Civil Appeals of Texas. Amarillo.

February 12, 1934.

Appeal from Potter County Court; J. M. Simpson, Judge.

Proceedings by the Palo Duro Furniture Company against Lon L. Blanscet, former Sheriff of Gray County, and others. From the judgment rendered, Lon L. Blanscet alone appeals.

Judgment affirmed.

John F. Sturgeon, of Pampa, for appellant.

Cooper & Lumpkin, of Amarillo, for appellee.

MARTIN, Justice.

On November 2, 1932, appellee recovered a judgment in the county court of Potter county against S. H. Boozikee for the sum of $478.61, with a foreclosure of its chattel mortgage lien on certain personal property then and thereafter situated in Gray county, Tex. On December 3, 1932, thereafter, an order of sale was issued on said judgment, addressed to the sheriff or any constable of Gray county, Tex., commanding him to seize and sell the property therein described and said order of sale was forwarded to appellant, then sheriff of Gray county, on December 3, 1932, with the request that he levy upon the property, advertise same for sale, and advise the attorneys for appellee of the date of sale. Having failed to hear from this, the attorneys for appellee took the matter up with appellant and was advised that he knew nothing about such order of sale. He shortly thereafter found it with his civil deputy. It had not been executed. On January 2d, appellant's term of office expired and he was succeeded as sheriff by C. E. Pipes. Pipes not having executed said order of sale, appellee on May 3, 1933, filed a motion against both Blanscet and Pipes and the sureties upon their respective bonds, to show cause why they should not pay the said judgment under and by virtue of articles 3825 and 3826 of the Revised Statutes of Texas.

Appellant filed answer, the nature of which it is unnecessary to state.

Thereafter, upon a hearing in the county court of Potter county, judgment was rendered as prayed for against appellant and Pipes and some of their sureties. Appellant alone has appealed.

The judgment of the trial court is apparently based both upon article 3825 and article 3826. We regard the terms of the former only as applicable to the facts proven against appellant Blanscet. This article reads as follows: "Should an officer fail or refuse to levy upon or sell any property subject to execution, when the same might have been done, he and his sureties shall be liable to the party entitled to receive the money collected on such execution for the full amount of the debt, interest and costs, to be recovered on motion before the court from which said execution issued, five days previous notice thereof being given to said officer and his sureties."

Appellant's first contention is that since this statute must be strictly construed, and uses the word "execution," an order of sale does not come within its terms, and therefore the present judgment based upon a failure and refusal to execute an order of sale is without statutory authority. The term "execution" comprehended and included "order of sale" within its meaning from our earliest judicial history. At the time it was cast by the Legislature into the above article, its meaning was definite and certain, and we will presume the term was used in the sense of its settled judicial interpretation. We quote:

"The terms `order of sale,' and `execution' are used interchangeably. Whether the writ which the officer holds be called an execution or an order of sale, it is but a written command, under the seal of the court, authorizing and directing him to execute its judgment. Burkett v. Clark, 64 N. W. 1113 1115, 46 Neb. 466 (citing Kelley v. Vincent, 8 Ohio St. 415)." 6 Words and Phrases, First Series, p. 5024.

"The term, execution, applies to all process issued to carry into effect the final judgment of a court. Any writ, which authorizes the officer to carry into effect such judgment, is an execution. We see no cause to doubt that it was used in this comprehensive sense in the statute." Pierson v. Hammond, 22 Tex. 585.

See, also, Rule v. Richards (Tex. Civ. App.) 159 S. W. 386, and Carlton v. Hoff (Tex. Civ. App.) 292 S. W. 642. This assignment is overruled.

The order of sale in question was returnable February 6, 1933. Appellant went out of office as sheriff January 2, 1933. It is contended that appellant had the full time, until February 6th, to make the levy and therefore is not liable since his term of office expired prior to the last named date. We do not so interpret article 3825. His liability thereunder is fixed by a failure or refusal "to levy upon or sell any property * * * when the same might have been done." If the judgment herein was based solely on article 3826, fixing liability for failure to make a return, or the making of a false return, an entirely different question would be presented. The...