Farquhar v. Dallas
| Decision Date | 01 January 1857 |
| Citation | 20 Tex. 200 |
| Parties | JAMES L. FARQUHAR AND ANOTHER v. JAMES L. DALLAS. |
| Court | Texas Supreme Court |
OPINION TEXT STARTS HERE
Where the charge of the court is correct as far as it goes, but does not cover the whole ground, it is the duty of parties to ask an additional charge, if they wish it.
In this case it was held that the sheriff showed no excuse for failing to make a levy as requested; and the judgment was reversed on the facts.
Appeal from Washington. Tried below before the Hon. R. E. B. Baylor. The facts are stated in the opinion.
B. H. Bassett, for appellants.
Shepard, for appellee.
This is a motion against Dallas, the sheriff of Washington county, for failing to return an execution, and for failing to make a levy upon property pointed out by plaintiffs, who are now appellants. The sheriff answered that he was not liable, and denied the facts charged against him, generally. Upon the trial a verdict and judgment were rendered against plaintiffs, which judgment is sought to be reversed by this appeal. The charge of the court was correct so far as it went, and if it did not cover the whole of the ground that it might have occupied, it was the duty of the parties to have asked an additional charge, if they had wished it. The only assignment of error that need be considered, is that the court erred in refusing a new trial.
There was no dispute about the facts, that the sheriff had the execution in his hands, specified in the motion; that plaintiffs by their attorney pointed out property in the possession of the defendant Gilder, and requested the sheriff to levy on it; that it was not levied on according to said request; and that the execution was not returned until after this motion was made.
The sheriff sought to avoid liability and excuse himself from default in not levying, and in not returning the execution, by showing that the plaintiffs, by their attorney, ordered the execution to be “held up.” The question in the case is whether or not he adduced evidence on the trial which sustained this excuse. In this issue the burthen of proof rested on the sheriff. There is no pretense that he countermanded the order to levy upon the drugs and medicines which he pointed out, and the excuse rendered by the sheriff, that it would be too much trouble to take an inventory of them, is no excuse at all.
As to the wagon, mule, and horse, which were pointed out to the sheriff, no reason is given why the levy was not made. The plaintiff's attorney, upon finding...
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...should have been called to the point, that the omission might have been corrected, if proper. Robinson v. Varnell, 16 Tex. 387;Farquhar v. Dallas, 20 Tex. 200;Converse v. McKee, 14 Tex. 30. Another ground of objection is that the verdict of the jury was contrary to the law and the evidence.......
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