Collins v. Hines

• Decision Date: 30 June 1906
• Citation: 100 S.W. 359
• Court: Texas Court of Appeals
• Parties: COLLINS et al. v. HINES et al.

100 S.W. 359

COLLINS et al. v. HINES et al.

Court of Civil Appeals of Texas.

June 30, 1906.

On Rehearing, March 9, 1907.

Appeal from Johnson County Court; J. D. Goldsmith, Judge.

Action by J. J. Hines and another against M. M. Collins and others. Judgment for plaintiffs. Defendants appeal. Affirmed.

See 99 S. W. 400.

Ramsey & Odell and Collins, Bockman & Floyd, for appellants. Jno. B. Warren, for appellees.

RAINEY, C. J.

Appellants were sued as sureties on a constable's official bond and judgment rendered against them.

The pivotal question, and one that is decisive of their liability is whether or not an execution which omits to state the name of the judgment plaintiff is void or voidable. The execution was issued by a justice of the peace and reads: "To the Sheriff or any Constable of Johnson County, Greeting: Whereas, on the 9th. day of October, A. D. 1899, before me, a justice of the peace in and for the county of Johnson, ____ having recovered a judgment against Jethro Hines for the sum of twenty four dollars and all costs of suit, with interest on same at the rate of six per cent per annum. Therefore you are commanded that of the goods and chattels, lands and tenements, of the said Jethro Hines you cause to be made the said sum of $24.00 and all costs in said case, ____ dollars with interest thereon from the 9th. day of October, 1899, at the rate of six per cent per annum, together with the sum of $5.20 costs of suit and further costs of executing this writ. Herein fail not and have you the said moneys, together with this writ at my office, in Precinct No. 1, Johnson county, within sixty days from date hereof. Given under my hand this 18th. day of September, 1900. J. H. Hayes, Justice of the Peace." The indorsement on the back of the execution is as follows: "No. 19, Justice Court Precinct No. 6, Johnson County, Texas, Ell Norris v. Jethro Hines. Execution issued this the 18th. day of September, 1900. J. H. Hayes, Justice of the Peace." The officer's return on the writ is as follows: "Came to hand this the 18th. day of Sept. ____ at ____ o'clock and executed the 20th. day of October, 18__, at ____ o'clock by G. S. Mercer." By an act of the Legislature defining the powers and jurisdiction of justices of the peace, passed August 17, 1876, it was provided (section 22) "that all the provisions of the laws regulating executions from the district courts where the same are not inconsistent with the provisions of this act shall apply to and govern executions from justice of the peace, so far as the same are practicable." See Rev. St. 1895, art. 1665. Article 2338, Rev. St. 1895, among other things, provides that an execution "shall correctly describe the judgment stating the court wherein and the time when rendered, the names of the parties," etc. It will be noted that the plaintiff's name is not given or even referred to, in the body of the execution. The indorsement of the name of the parties on the back of the execution cannot be considered as naming the parties in the writ, as that is no part of the essential requirements of the execution.

In the case of Capps v. Leachman, 90 Tex. 499, 39 S. W. 917, 59 Am. St. Rep. 830, our Supreme Court held that an execution where the name of the defendant was left blank was null and void; Justice...