Herndon v. Rice
| Citation | 21 Tex. 455 |
| Parties | REUBEN HERNDON v. CARY L. RICE. |
| Decision Date | 01 January 1858 |
| Court | Texas Supreme Court |
An order of court granting a new trial upon the payment of all costs of the term, is not a judgment upon which execution may issue for such costs.
Where land is levied upon and sold under a void execution and the purchaser pays the amount bid, which is appropriated to the payment of the debt of the defendant in such execution, in a suit to set aside the sale as a cloud upon his title by the party whose land was sold, the decree annulling the sale should also direct the money so paid to be refunded. 7 Tex. 60.
Had the purchaser under the sale sought to cancel his deed and recover back the money which he had paid, he could succeed only to the extent of his legal rights, and would not be entitled to such recovery.
Where the verdict of a jury is in favor of the plaintiff generally, and there are two defendants, both appearing equally in default, it is error to render judgment for costs against one alone.
Where there has been an effort to comply with the law, in giving a bond to secure costs, or any other bond required in a cause, but the bond is defective, courts as a general rule will permit a new bond to be given.
A defective bond for costs having been given, and no objection having been made to it for several terms, and no motion or notice of objection filed, before announcing ready for trial, and no reason appearing why the objection was not made sooner, the court rightly disregarded a motion to dismiss, then made, for a failure to comply.
Error from Wood. Tried below before Hon. C. A. Frazer.
Suit by defendant in error to cancel a deed made to the plaintiff in error by the sheriff, under an execution, the recital of which is as follows: “Whereas, at our honorable district court, fall term, A. D. 1853, it was ordered by said court that Charles F. Stanley, Isaac Wilkins, and Cary F. Rice, have a new trial, on payment of all costs for this term of the court, therefore you are hereby commanded, of the goods, chattels,” etc., also against the sheriff and his sureties on his official bond, for damages for levying and selling under said execution, alleging it to be void. In one of his amendments to his petition, plaintiff offered to refund the money paid by the defendant at the sale made by the sheriff. There was a rule for security for costs, which was attempted to be complied with, but the bond given was defective, and after the parties announced themselves ready for trial defendant moved to dismiss, because of non-compliance with the rule, which motion was overruled. The court charged the jury as follows: “The execution offered in evidence, as to the issues before you, is void, and if you believe from the testimony, that the defendant Herndon purchased the land in controversy, at a sale made by the defendant Stout, or his (deputy) under said execution, you will find for the plaintiff, otherwise you will find for the defendants.” The verdict was in the following words: “We, the jury, find for the plaintiff.” The judgment dismissed the petition as to the sureties on the sheriff's bond, and as to the claim set up for damages, and annulled the sale made by the sheriff, Stout, and taxed the defendant Herndon with all the costs. Herndon prosecuted a writ of error, and among others assigned the following errors:
1st. The court erred in refusing to dismiss for non-compliance with the rule entered for security for costs.
2d. The charge of the court was erroneous.
3d. The judgment is not warranted by the pleadings, the law or the finding of the jury.
J. H. Dearborn, for plaintiff in error, cited Howard v. North, 5 Tex. 290;Horan v. Wahrenberger, 9 Tex. 313;Teas v. McDonald, 13 Tex. 349;Scott & Rose v. Allen, 1 Tex. 508.
Winston Banks, for defendant in error.
It is only necessary to notice that part of this case which relates to the cancellation of the deed which constituted a cloud upon defendant's title. That part of it which related to damages, and to the sureties of the sheriff, was disposed of upon exception against defendant in error, of which he has made no complaint.
The execution showed upon its face that the order of the court was not a judgment for the recovery of costs, upon which an execution could issue. It was merely an...
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