Moore v. Gammel

• Decision Date: 01 January 1854
• Citation: 13 Tex. 120
• Parties: MOORE v. GAMMEL.
• Court: Texas Supreme Court

13 Tex. 120

MOORE

v.GAMMEL.

Supreme Court of Texas.

1854.

Appeal from Fayette. The defendant accepted service of the interrogatories as follows: “I hereby accept service of the within interrogatories and waive the five days' notice of copies of notice and interrogatories.”Webb & Harcourt, for appellant.

LIPSCOMB, J.

This suit was brought by the appellee against the appellant for levying on and selling certain rifle guns on an execution against one Shearn, which plaintiff alleges to have been his property. The defendant demurred to the petition, which was overruled by the Court, and this decision on the demurrer constitutes the ground of the first assignment of error.

There is no question that at Common Law the facts charged in the petition would form a ground of action in favor of the owner of property so seized and sold. But the appellant's counsel contend that the Common Law has been changed by our statute authorizing a claimant of property levied to have his claim tried before the property is sold, on his filing his claim and giving bond as directed by the statute, and they claim to have the decision of this Court, in favor of their position, in the case of Vickery v. Ward, 2 Tex. R., 212. In that case a claim to the property had been interposed and a bond given to try the right of property, and the execution had been arrested; the claimant then filed his petition as in an original action, instead of after the Sheriff had returned the claim and bond to the Court from whence execution had issued and having the issue made up under the statute. The defendant made no objection to the suit going on as an original suit. The Court, commenting upon the non-conformity with the statutes, say, “That the statutory mode is the most simple and least expensive, there can be no doubt; and had the defendant in this suit, who was the plaintiff in the execution, taken exception to the suit, the exception would have been sustained.” And the reason is obvious enough, that it was because the proceedings, having been commenced by the interposer of the claim, and bond given, that arrested the execution under the statute, the trial then should also have been under the statute. And the inference cannot be fairly drawn from the language of the Court, that the right of the claimant could not be asserted as a Common Law right, but that if not pursued according to the terms of the statute the remedy would be lost. Nothing was meant by the decision but what...