Crosby v. Ayres

• Decision Date: 31 December 1846
• Citation: Crosby v. Ayres, 1 Tex. 398 (Tex. 1846)
• Parties: TOLER & CROSBY v. DAVID AYRES
• Court: Texas Supreme Court

1 Tex. 398

TOLER & CROSBY

v.DAVID AYRES

Supreme Court of Texas.

December Term, 1846.

Appeal from Washington County.

A court will never undertake to adjudicate the rights of parties who are not before it.Nor will it undertake to perform acts which have not in view some useful or available object.

When a matter of litigation is pending before a court between proper parties, the same court will not adjudicate the same matter in a collateral proceeding, in which all the parties are not before it.

The facts of this case are so fully given in the opinion of the court, delivered by Mr. Justice Wheeler, that they will not be repeated here.

B. Gillespie, for appellants.

J. Webb, for appellee.

WHEELER, J.

The facts disclosed by the record so far as material to this case are: That the appellee was plaintiff in an execution issued on the 8th day of October, 1842, upon a “twelve months”' bond of the appellants, which had become forfeited on the 7th day of May, 1840.The execution was levied on land pointed out by the appellant, Toler.On the day of sale, the sheriff, by a writing on the back of the execution purporting to be under his hand and seal, but having no seal annexed, appointed one Maddox special deputy to sell the land, who accordingly proceeded to sell, and one A. Butler became the purchaser, on the 1st Tuesday in November, 1842, but the sheriff was enjoined from making the title.

These facts appearing on the return of the execution, at the spring term of the district court next ensuing, the appellants“moved the court to set aside and quash the proceedings and return of the sheriff” for two reasons, viz.:

1st.That the land was sold without appraisement.

2d.That the appointment conferred on the deputy no authority to act.

The court refused the motion and the case comes before us on appeal.There being no notice of appeal in the record, it is contended for the appellee, that the appeal ought for that reason to be dismissed.

The case was brought to the supreme court at the June term, 1843, and having been continued from term to term, was again continued at the last term by consent.No motion to dismiss appears to have been made until the final hearing at the present term.We think the motion comes too late and ought not to prevail.

In the view we have taken of the case, it will not be necessary to examine the grouuds assigned in support of the motion.Its objects and design clearly were to set aside and annul the sale to Butler, and hence to...