Dewitt v. Dunn

• Decision Date: 01 January 1855
• Parties: COLUMBUS C. DEWITT v. WILLIAM DUNN AND OTHERS.
• Court: Texas Supreme Court

15 Tex. 106

COLUMBUS C. DEWITT

v.WILLIAM DUNN AND OTHERS.

Supreme Court of Texas.

1855.

The statute (Hart. Dig. art. 1332) provides that “it shall be the duty of the sheriff to indorse on each execution the day on which it came into his hands; and if he received more than one on the same day, and against the same person, he shall number them as received; and on failure, he shall be liable to pay twenty per cent. on the amount of the execution, together with such damages as the plaintiff in execution may sustain by such failure to number, to be recovered” by motion; held, that the penalty was not incurred by a failure to date or number where it did not appear that more than one execution had been received.

A motion against a sheriff and his sureties for failure of the former to pay over money collected on execution, under the statute (Hart. Dig. art. 1333), must be made in the county from which the execution issued.

Appeal from Guadalupe. The execution was issued from Gonzales county to the sheriff of Guadalupe county, and the motion was made in the latter county.

J. Ireland, for appellant.

W. B. Leigh, for appellees.

HEMPHILL, CH. J.

This was a motion against the sheriff and his sureties, to recover statutory damages, for failure to indorse upon an execution the day on which it came to his hands, and also for failure to pay over the amount collected on said execution. The defendants excepted on three special grounds, viz.:

1st. That the mere neglect of the sheriff to indorse on an execution the time it came into his hands does not render him and his sureties liable for the amount of the execution.

2d. There is no averment that the sheriff received more than one execution on the same day, and that he neglected to number them as received.

3d. Because, if the sheriff had collected the amount of the execution and refused to pay over the same, the court had no jurisdiction over the subject matter, the execution having issued from the court of another county, viz.: the county of Gonzales, and that said court alone had jurisdiction.

The exception was sustained, the motion dismissed, and the plaintiff sued out his writ of error.

The first ground for the motion, viz.: that the sheriff did not indorse the date of its being received, on the execution, is founded on art. 1332, which declares that the sheriff shall indorse on each execution the day on which it came into his hands; and if more than one have been received on the same day against the same person, he shall number them as received, and on failure, he shall be liable to pay twenty per cent. on...