Graves v. Hall

• Decision Date: 01 January 1855
• Citation: 13 Tex. 379
• Parties: RALPH GRAVES v. WARREN D. C. HALL.
• Court: Texas Supreme Court

13 Tex. 379

RALPH GRAVES

v.WARREN D. C. HALL.

Supreme Court of Texas.

1855.

Appeal from Brazoria. Action by the appellant against the appellee commenced on the 25th day of October, 1854, on a judgment of the District Court of Brazoria county, which was rendered on the 27th day of March, 1843. The petition alleged “that the first execution upon said judgment was issued on the 11th of April, 1843; that the second execution was issued afterwards, to wit: on the 12th of October, 1843; and that afterwards, to wit: on the 2d of April, 1844, another execution was issued; and that executions were again issued on the 24th of September, 1844, and on the 6th of May, 1845; that since said last mentioned date a number of executions have been issued, but that no execution has been issued since the 16th day of December, A. D. 1848.” The petition further alleged that no part of the judgment had been paid, and contained a prayer for judgment, &c.

The defendant filed a general demurrer, general denial, and plea of the statute of limitations.

A jury was waived; the case submitted to the court; and judgment for the defendant.

There was a statement of facts and bill of exceptions from which it appeared, that the plaintiff proved his judgment as alleged, and the first execution thereon, issued on the 11th of April, 1843, returned, “stayed by order of the plaintiff's attorney, September 14th, 1843;” that the plaintiff then offered to read in evidence the subsequent executions as alleged in his petition, “to the reading of which executions the defendant objected on the ground that five of said executions hereinbefore first recited were originals, and not alias and pluries executions, and that two of said executions herein before last recited were issued more than one year after the issuance of either of said five preceding executions, which objection was sustained by the court,” &c. The first of the excluded executions was issued on the 12th of October, 1843, and was returned, “Rec'd 12th Oct. 1843, and stayed by order of plaintiff's attorney, 12th March, 1844.” The next execution was issued on the 2d of April, 1844, and returned, “Rec'd 2d April, 1844. Stayed by order of plaintiff's attorney, September 12th, 1844.” The next execution was issued on the 24th day of September, 1844, and returned, “Received 24th September, 1844. (Signed) James Dockrill, deputy sheriff. This execution was placed in my hands by W. McMasters, late sheriff, too late for me to make a levy before the term of the court. I therefore return it without levying. March 17th, 1845, Jno. W. Brooks, sheriff.” The next execution was tested the 6th May, 1845, and returned, “Rec'd 12th May, 1845. No property found in this county.”

The dates and returns of the other executions are not important. The act of the Congress of the Republic, approved January 16th, 1843, provided that the term of the court in Brazoria county should commence on the third Mondays in March and September, and continue in session two weeks.

Wharton & Terry, for appellant. It is evident from the date of each execution, from the date and amount of the judgment recited in each execution from the bill of costs annexed to each execution, and from the return of the sheriff upon each execution, that they were issued upon the same judgment, and the words “you are commanded as you have been before,” and “you are commanded as you have been often before,” would not make the proof more conclusive.

It is contended, then, that the omission of the clerk to insert the words that designate alias and pluries executions was a mere clerical mistake which might have been amended had the appellee moved to quash any one of the executions. But inasmuch as the appellee did not test the validity of the executions before they were returned by the sheriff, he should now be denied the right to do so, more especially as the rights of third persons cannot be affected by this judgment.

P. McGreal, for appellee. The only point in the case has been decided by the court repeatedly, viz: that an execution which has been issued more than twelve months after the rendition of the judgment, appearing on its face to be an original execution, is void. (Bennett and Wife v. Gamble, 1 Tex. R., 124; Scott & Rose v. Allen, Id., 524; Fessenden v. Barrett, 9 Tex. R., 420.)

It is not, it is respectfully submitted, that diligence which the law prescribes, when a party places an execution in the hands of a sheriff and ““orders him to stay it;” it must appear that he has endeavored to have it levied upon property, to have the money collected, or he will be guilty of laches, and...