Boggess v. Howard

• Citation: 40 Tex. 153
• Parties: GILES S. BOGGESS, JR., v. J. L. HOWARD AND L. KAY.
• Decision Date: 01 January 1874
• Court: Texas Supreme Court

40 Tex. 153

GILES S. BOGGESS, JR.,

v.J. L. HOWARD AND L. KAY.

Supreme Court of Texas.

1874.

1. After an order dismissing the writ of error, plaintiff was allowed until the next term to file a new error bond.

2. A judgment rendered in a justice's court on March 5, 1859, on which executions had been regularly issued until October 27, 1859, and upon which, on the twenty-sixth of January, 1869, pluries execution was issued, was not dormant at the issuance of the last execution; the act of February 14, 1860, protecting the judgment until the repeal of that act on November 2, 1866; the stay law enacted by the eleventh legislature dispensing with acts of diligence until that law was adjudged unconstitutional on the 24th of February, 1868; and the execution having issued within one year after the stay law was declared invalid.

3. While an execution sale made under a dormant judgment may be avoided by the defendant in execution, a stranger cannot object to such execution, or to the title of the purchaser at such sale, in a collateral proceeding.

4. Where a party in a collateral action claims under a sheriff's deed, the court cannot look into irregularities of the process or proceedings of the sheriff.

5. This rule is, if not identical with a corollary from the elementary principle, that acts done under an erroneous judgment are valid and binding until they are reversed; and in this there is no practical difference where the matter is sought to be brought collaterally in question, whether the right claimed under it is made by a party or a stranger.

6. Johnson v. Shaw, 33 Tex. 585, limited.

ERROR from Rusk. Tried below before the Hon. J. B. Williamson.

The facts are fully stated in the opinion of Justice Moore.

W. W. Morris, for plaintiff in error, cited Johnson v. Shaw 33 Tex. 585.

James H. Jones, for defendants in error, cited Pas. Dig. art. 1515; Waterhouse v. Love, 23 Tex. 560;Sydnor v. Roberts, 13 Tex. 598;Ayers v. Dupree, 27 Tex. 603.

WALKER, J.

The writ of error in this case must be dismissed for want of a proper bond. The bond is not in conformity with the statute. Art. 1517, Pas. Dig. The case of Waterhouse v. Love, 23 Tex. 560, and numerous subsequent cases, decide the question.

Dismissed.

Opinion rendered March 10, 1873.

The case was reinstated, and plaintiff in error allowed until next term to file a new bond, which term began on December 3, 1873.

MOORE, ASSOCIATE JUSTICE.

This is an action of trespass to try title, brought by the appellant, Boggess, against the appellee Howard, to which appellee Ray, the landlord of Howard, made himself a party defendant. By agreement of the parties in the court below, a jury was waived and the case submitted to the determination of the court, by whom a judgment was rendered in favor of defendants. The record shows that appellant and appellees claim title to the land in controversy under a common source, and the only question presented for the consideration of the court is, which of them have shown the superior and better title.

On the eleventh of September, 1868, appellant brought suit in the district court of Rusk county against J. R. Littell, on a promissory note of said Littell, of which he claimed to be the bearer; and on the second of March, 1869, he caused to be issued an ancillary attachment against the property of said Littell, which was on said day levied upon the land in controversy. At the spring term, 1869, of said court, it was adjudged that he recover the amount claimed, and that an order issue to the sheriff commanding the sale of the land upon which the attachment had been levied. In pursuance whereof, said land was sold by the sheriff on the sixth of July, 1869, to appellant, for the sum of sixty dollars.

The appellees claim under a deed from the sheriff to appellee Ray, as the purchaser at a sale of said land on the second of March, 1869, on an execution issued on the twenty-sixth of January, 1869, on a judgment in favor of E. Jacobs, against said Littell, by a justice of the peace of Rusk county, on the fifth of March, 1859.

It is clear, therefore, as appellees have the older title, the court did not err in rendering judgment in their favor, unless the record discloses some intrinsic defect in their title, or the judgment or proceeding under it, of which appellant can take advantage, and which entitles him to hold the land under his junior title. Appellant maintains that the judgment upon which this execution issued was dormant; and as Ray controlled the judgment, and both himself and Howard were present at the sale, and heard appellant's counsel give notice, previous to said sale, that said judgment was dormant when said execution issued, and that his attachment had been levied upon the land, the sale was absolutely void, or at least no title passed thereby to said Ray. This proposition involves two questions: first, was the judgment upon which the execution issued dormant? second, if so, was the sale under it to a party or privy void?--to neither of which can we concur in the conclusion insisted upon by appellant.

The judgment was rendered, as we have said, on the fifth of March, 1859; execution issued thereon on the sixteenth of the same month, which was returned on the sixteenth of May, 1859. Alias execution issued June 13, 1859, returned August 17, and a pluries issued on the twenty-fourth of the same month, which was returned on the twenty-seventh of October, 1859; from which time until the twenty-sixth of January, 1869, no diligence seems to have been used to enforce the judgment. But by the act to prevent judgments from becoming dormant, and to create and preserve judgment liens, which took effect on the fourteenth of February, 1860, it is provided, “Whenever judgment shall be rendered by any court within this state, it shall be competent for said court, or the clerk of said court, to issue execution thereon at the instance of any party interested, and said judgment shall not become dormant unless ten years shall have elapsed between the issuance of executions on the same.”

As this judgment was not dormant when this law took effect, and as it includes the judgments of “any court within the state,” it certainly did not become so by a failure to issue execution upon it prior to the repeal of this act of February 14, 1860, by the act to prevent judgments from becoming dormant, etc., passed November 9, 1866. The third section of this latter act reads, “No judgment of a court of record shall become dormant unless ten years shall have elapsed between the issuance of executions.”

Mr. Justice Wheeler, in the case of Wahrenberger v. Horan, 18 Tex. 59, says: “Whether justices' courts in this state are to be deemed, for any purpose, courts of record, has never been determined by this court.” And we are aware of no subsequent case in which the question suggested by this learned judge, but not then decided, has been answered, nor do we propose upon the present occasion to enter upon its discussion. If the judgments of justices' courts do not come within this provision of ...