McCanless v. Gray

• Decision Date: 28 December 1912
• Parties: McCANLESS, Sheriff, v. GRAY.
• Court: Texas Court of Appeals

153 S.W. 174

McCANLESS, Sheriff, v. GRAY.

Court of Civil Appeals of Texas. Amarillo.

December 28, 1912.

Rehearing Denied January 25, 1913.

Appeal from District Court, Dallam County; D. B. Hill, Judge.

Action by T. R. Gray against J. E. McCanless, sheriff. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

Tatum & Tatum, of Dalhart, for appellant. Madden, Trulove & Kimbrough, of Amarillo, and J. E. Synnott, of Dalhart, for appellee.

HALL, J.

On the 12th day of April, 1911, H. Altman and D. McUlvan, nonresidents, recovered a judgment in the sum of $25,280 against appellee, T. R. Gray, and others; said judgment foreclosing a lien upon certain real estate. Order of sale was issued, the real estate sold, and, after crediting the judgment with the proceeds, there remained a balance due upon said judgment of over $22,000; whereupon the said Altman and McUlvan caused execution to issue, which was placed in the hands of appellant, McCanless, who levied the same upon property which appellee, Gray, alleges is his homestead. Appellant advertised the property for sale on the first Tuesday in September, 1911. Appellee, Gray, applied to the district judge of Dallam county for an injunction restraining appellant, McCanless, from making said sale, and on the 29th day of August, 1911, the district judge granted the temporary writ. On the 24th day of February, 1912, appellant, McCanless, filed his answer, containing general demurrer, two special exceptions, general denial, and special answer, alleging that the execution was placed in his hands as sheriff; that he levied the same upon lots 1 to 4, block 49, city of Dalhart, in Dallam county, and advertised the same for sale, stating that he was neither a necessary nor proper party to this suit, but was acting purely as a ministerial officer in executing said writ; that he was not a party to the judgment upon which said execution was issued; that he had perpetrated no fraud in levying the writ, but that H. Altman and D. McUlvan were the only proper and necessary parties defendant; that they were the only parties interested in the collection of the judgment; that they had caused the execution to issue and be placed in his hands as sheriff. The special answer raises the same issues as the special exceptions. Appellants also filed a motion to dissolve the injunction and dismiss the case, based upon the grounds set up in his special answer. Altman and McUlvan, being nonresidents have not been made parties defendant to the action. Upon a trial the appellant's motion to dissolve, and general and special exceptions to the petition, were overruled and judgment rendered against him, perpetuating the temporary injunction.

It will not be necessary to consider the assignments of error in detail in disposing of the questions presented.

Appellant's contention that the plaintiffs in execution, Altman and McUlvan, are necessary parties to the suit to enjoin the sale under the execution is, in our opinion, sound. It has been held by our Supreme Court, in Ryburn v. Getzendaner, 1 Posey, Unrep. Cas. 349, that the plaintiff in execution is always a necessary party to such an action. Appellee contends that the rule announced in Daniel's Chancery Practice, 150-152, that when a person who ought to be a party is...