Luter v. Rose
| Decision Date | 01 January 1856 |
| Citation | 16 Tex. 52 |
| Parties | EXUM LUTER v. JOHN W. ROSE. |
| Court | Texas Supreme Court |
A judgment of the district court on appeal from a justice's court, under the republic, to the effect “that the judgment of the court below be affirmed, with ten per cent. damages and stay of execution three months, per agreement of parties,” was held to be sufficiently certain to sustain a sale under execution issued thereon.
There was nothing in the constitution of the republic which prevented the allowance of an appeal from the judgment of a justice's court to the district court. [5 Tex. 433;6 Tex. 144.]
The decision in Howard v. North, 5 Tex. 290, to the effect that the sheriff's sale in that case was bad, on the ground that a tract of land was levied on and appraised at so much per acre, and only part was sold, is inapplicable to sales without appraisement.
Appeal from Victoria. This was a suit for partition of land. The plaintiff claimed title under a sheriff's sale. The judgment, execution and deed were excluded on the ground that the judgment was null and void, and the defendant had judgment.
It appeared by the statement of facts that the plaintiff offered in evidence a transcript of a suit in a justice's court, in which there was judgment for the plaintiff for seventy-three dollars and costs of suit; appeal to district court, June 29, 1843, where there was judgment, April 6, 1844, as follows: “In this case, it is ordered that the judgment of the court below be affirmed, with ten per cent. damages and stay of execution three months, per agreement of parties.” To which the defendant objected on the ground that said judgment was null and void, and the court sustained the objection, to which the plaintiff excepted.
The plaintiff then offered the execution thereon, indorsed to sell without appraisement; levied on the undivided half of the league of land in question; advertised to sell the same “or so much thereof as may be necessary to satisfy said execution and costs;” and returned sold eleven hundred and fortyseven 1-19 acres to the plaintiff in execution, at nine and a half cents per acre, which covered the principal, interest and costs.
To which the defendant objected on the ground of the nullity of the judgment. The court sustained the objection, and plaintiff excepted.
Same objection was sustained to the sheriff's deed, and to the deed from the purchaser to the plaintiff in this suit. The deed conveyed undivided eleven hundred and forty-seven 1-19 acres.
The plaintiff had previously shown title in the defendant in execution.
W. S. Glass and Phillips & Phillips, for appellant.
A. S. Cunningham, for appellee.
The question is as to the validity of the judgment under which the plaintiff claims to have derived title. It is not, it must be admitted, as full and formal as it might have been, or as a correct practice would require. But it is not, therefore, necessarily void. Though it does not specify the sum for which it was rendered, yet that may be readily ascertained by reference to the judgment of the justice, which was before the court when it gave judgment, and remains there of record; and though it is not in itself certain as to the amount, it may thus be rendered certain. And it has been expressly decided that a judgment of affirmance, not stating the amount, is sufficiently certain, if it can be made certain by reference to the original judgment. (Benedict v. Dillenhunt, 3 Scam. 287.) So, also, it has been decided that a judgment entered, “that the plaintiff recover of the defendant according to specialty, with six per cent. interest and costs,” on a verdict “for the plaintiff according to specialty, with six per cent. interest,” the ad damnum being left blank in the declaration, but laid in the writ, is valid. (Malone v. Donally, Minor, 12.) And in Lewis v. Smith (2 Serg. & R. 142), the supreme court of Pennsylvania held that, upon a confession of judgment, if the plaintiff's demand is in the nature of a debt, which may be ascertained by calculation, it is sufficient to enter...
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...and the record, it will be upheld. 33 C. J. par. 128, p. 1196; McCoy v. Texas Power & Light Co. (Tex. Com. App.) 239 S. W. 1105; Luter v. Rose, 16 Tex. 52; S. M. Dunlap et al. v. S. L. Southerlin et al., 63 Tex. 38. The pleadings and the record of the case may also be considered for the pur......
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Lester v. Gatewood
...be regarded by us as sufficiently certain, viewing the petition, as the rendition of a judgment for any specific sum. The case of Luter v. Rose, 16 Tex. 52, 53, was one upon appeal from the justice court to the district court, where the cause was tried de novo. The justice court judgment wa......
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Campbell v. Townsend
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