Meader Co. v. Aringdale
| Decision Date | 29 January 1883 |
| Docket Number | Case No. 1359. |
| Citation | 58 Tex. 447 |
| Parties | THE MEADER COMPANY v. THOMAS ARINGDALE. |
| Court | Texas Supreme Court |
ERROR from Waller. Tried below before the Hon. Wm. H. Burkhart.
An execution issued out of the district court of Waller county, April 27, 1880, in favor of plaintiffs in error and against E. P. Alsbury, which was on the 28th day of April, 1880, levied upon personal property found in the possession of E. P. Alsbury, a part of which was claimed by Thomas Aringdale through his agent, E. P. Alsbury, who filed his claim bond and affidavit, dated April 30, 1880, for the trial of the right of property. October 9th, claimant filed his motion to quash the execution for the following reasons: First, because at the time of the issuance of the execution more than one year had elapsed since the recovery of the judgment upon which the execution issued, and that no execution had issued thereon prior to the one now sought to be quashed; that the judgment, therefore, was, at the time of the issuance of execution, dormant, and there was no authority for the issuance of said execution. Second, because the execution was not authenticated by the seal of the court, as required by law.
The motion was, on the 18th day of April, 1881, sustained for the reasons therein stated, and the cause dismissed.
The judgment recited that “on this day came on this cause for trial, and came on defendant's motion to quash execution for reasons therein set forth; thereupon plaintiffs offered to prove by record evidence that the judgment has been revived, which was permitted by the court, to which defendant excepts; and upon hearing the evidence and argument of counsel, and having duly considered and understood the said motion,” etc. The judgment proceeded then to adjudge the law upon the motion in favor of the defendant and to dismiss the cause.
The plaintiffs prosecuted their writ of error to the supreme court, and assigned as error:
1st. The court erred in sustaining defendant's motion to quash the execution.
2d. The judgment or decree of record is not the judgment or decree asked for in defendant's motion to quash, and the court erred in rendering the same.
The execution was issued on the 27th day of April, 1880, returnable October 4, 1880, and was returned or filed in the district court September 9, 1880, with the indorsement showing the levy April 28, 1880, and that defendant in error had claimed the said property and filed his oath and bond. The oath and bond bear date April 30, 1880. The bond purports to have been filed in the district court September 9, 1880, and the oath April 9, 1880. The motion to quash was filed October 9, 1880, and acted upon April 18, 1881.
The execution was as follows:
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¦STATE OF TEXAS, ¦)¦ ¦
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¦ ¦)¦In District Court, to October Term, 1880.¦
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¦County of Waller,¦)¦ ¦
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THE STATE OF TEXAS, to the sheriff or any constable of Waller county, greeting:
Whereas, at a regular term of the district court held in and for the county of Waller, on the 13th day of July, A. D. 1878, the Meader Company, by the judgment of the said court, recovered against E. P. Alsbury the sum of $1,563.50, as also the further sum of $11.10 for cost in this behalf expended, and the further cost of executing this writ, as of record is manifest:
Therefore you are hereby commanded that of the goods and chattels, lands and tenements of the said E. P. Alsbury, you cause to be made the sum of money aforesaid, and have you the same before said court to be held at the court house thereof, in the city of Hempstead, on the first Monday in October, A. D. 1880, it being the 4th day of October, 1880, to render unto said court this writ, with your return thereon, showing how you have executed the same.
Herein fail not, under penalty of the law, and of this writ make due return.
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¦Witness:¦L. McDade, clerk of the district court aforesaid, and the¦
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¦ ¦seal thereof affixed at office, in the city of Hempstead,¦
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¦[SEAL.] ¦ ¦
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¦ ¦this the 27th day of April, 1880. ¦
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¦ ¦L. MCDADE, ¦
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¦ ¦Clerk Dist. C. W. Co. ¦
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H. M. Browne, E. Blanc and A. J. Harvey, for plaintiff in error.
I. The execution was functus officii at the time defendant's motion to quash was filed, and the motion to quash came too late. The execution was issued on the 27th day of April, 1880, returnable October 4, 1880, and was returned or filed in the district court September 9, 1880, with the indorsement showing the levy April 28, 1880, and that defendant in error had claimed the said property and filed his oath and bond. The oath and bond bear date April 30, 1880. The bond purports to have been filed in the district court September 9, 1880, and the oath April 9, 1880. The motion to quash was filed October 9, 1880, and acted upon April 18, 1881. Scott & Rose v. Allen, 1 Tex., 512; Toler & Crosby v. David Ayers, 1 Tex., 399;Portis v. Parker, 8 Tex., 28; Herman on Executions, p. 621, sec. 404, and cases cited.
II. If the execution was not void, but voidable only, the claimant to the property was not entitled to assert its invalidity in the proceeding to try the right of property, and have the same quashed for the reasons specified in his motion. Earl v. Thomas, 14 Tex., 591;Portis v. Parker, 22 Tex., 707;Boggess v. Howard, 40 Tex., 157, 158; also, Latham v. Selkirk, 11 Tex., 320.
III. The execution was not void. Boggess v. Howard, 40 Tex., 158;Sydnor v. Roberts, 13 Tex., 618, 619; Hancock v. Metz, 15 Tex., 204; Hawley v. Bullock, 29 Tex., 224; Anderson v. Richardson, 21 Tex., 287; Pasch. Dig., sec. 12,496, and cases cited; Herman on Executions, sec. 326, p. 403; Oxley v. Wizzle, 3 Morph., 250; 3 Wash. C. C., 134;6 Yerg., 518;4 Wend., 222;17 Johns., 274;4 Litt., 309;Noe v. Commonwealth, 6 J. J. Marsh., 514.
IV. The defendant's motion to quash the execution should have been acted on by the court at the October term, 1880, and not afterward.
V. Laches will prevent an execution from being quashed or set aside; as making the motion six months after the levy and delivery of claimant's oath and bond to the sheriff. Herman on Executions, sec. 404, p. 621.
VI. The burden of proof was on Thomas Aringdale to establish his right to the property by evidence, and until he did so he was a stranger to the execution and judgment, and had no right to inquire into the validity thereof. The property was personal property, and in the possession of defendant in execution at the time of the levy. Latham v. Selkirk, 11 Tex., 314;14 Tex., 322; Sydnor v. Roberts, 13 Tex., 510; Herman on Executions, sec. 403, p. 619.T. J. Reese, for defendant in error.
I. The motion to quash the execution was in the nature of a special exception to pleadings, and was filed...
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