Moore v. Harris
| Decision Date | 31 December 1846 |
| Parties | JOHN W. MOORE v. D. W. C. HARRIS |
| Court | Texas Supreme Court |
Appeal from Harris County.
By the adoption of the common law the writ of error was introduced as a part of that system, and the fullest scope has been given by the courts to the remedial action of that writ, extending it to all judgments of inferior courts, whether the proceeding be in accordance with the common law practice or with Spanish jurisprudence, or with the practice and principles governing courts of equity.
Technical objections springing solely from the restrictions in England of this writ to courts of record, whose proceedings are in conformity with the course of the common law, will be disregarded when they impede the operation of this remedy, enlarged as it must be for its proper adaptation to our practice and system of judicature.
It is a fatal objection to bring from an inferior to a superior court two separate judgments by one writ of error.
The jurisdiction of the county courts in suits for the recovery of money and to hear and determine such motions against sheriffs and other officers as are defined by the 18th section of the act of December 20, 1836, was repealed by the act of January 19, 1839.
In this case two judgments were rendered against the appellant, Moore and others, his sureties, on the 11th of November, 1840, by the county court of Harris county on rules taken against him, Moore, as sheriff of that county by the clerk of the court and others for failing to pay over costs collected by him. Moore sued out a writ of error from the district court and under which both judgments were sent up. The district court dismissed the writ of error, and from that judgment Moore appealed. The facts upon which the case was decided in this court are fully given in the opinion delivered by Mr. Chief Justice Hemphill.
J. W. Henderson, for appellant, contended that as there was no statute which authorized judgment to be given against the sureties of a sheriff, upon a rule against him to pay over money, the joint judgment rendered by the county court against the sheriff and his sureties was erroneous. “Statutes giving summary remedies, though penal, must be strictly construed.” 1 How. 293;1 Cooke, 365; Walker, 229, 251; 7 Yerg. 365; Cooke, 267.
The judgment, being void as to the securities, is void as to all. 12 Johns. 434;5 How. 516. There was no service upon Moore or his securities. Laws of Texas, 2d Cong. p. 38. The judgment without notice is absolutely void. 4 How. 402;5 Id. 516; Walker, 254. Jurisdiction can only be acquired over the person or property of an individual in the mode pointed out by the statute. 1 vol. Laws, secs. 7 and 8, p. 201; 2 vol. Id. p. 38.
When a party elects to proceed against a sheriff by motion under the provisions of a statute all the proceedings must be in strict accordance with the statute. 7 Yerg. 365.
The record does not show service upon Moore. Nothing can be presumed for or against the record but what appears substantially on its face. 1 How. 30. The mere recitals of the clerk are no part of the record. They are his own acts preparatory to presenting the true record. The recital then that Moore appeared in person is no evidence that he did appear, unless the record shows that he was served with process or filed his plea. 1 How. 527;1 Id. 401, 530;5 Binn. 185. The county court had no jurisdiction at the time the proceeding was had. 4 vol. Laws, p. 91.
The judgment was erroneous because it was for dollars, when it should have been for Texas promissory notes. 3 vol. Laws, p. 81.
The writ of error as process was unknown to our law and practice until the act of June 25, 1841, introduced it. 5 vol. Laws, p. 85. Under our statute the writ of error is widely different from the same process at common law. It brings up causes tried in chancery as well as those tried at law, and any person affected by the judgment of an inferior court may prosecute it.
Moore had a right to prosecute a writ of error for himself and securities. The record sent up brought all the parties before the court, and the judgment could have been affirmed or reversed as to all. The dismissal of the suit in the district court because all parties did not join in the writ of error was erroneous. 1 Cooke, 191, 192;6 Pet. 172.
If the court adopt the rule that all must join, it must also adopt the remedy of ordering a summons and severance, and the refusal to order a summons and severance was error. Miller v. Bank, 11 Wheat.
Buckley, for appellee.
The case was disposed of in the district court upon demurrer. The demurrer could properly be made ore tenus. 3 Paige, 440; 6 Johns. Ch. 149. In a writ of error all must unite against whom the judgment was rendered. 2 Bac. Abr. tit. Error, letter B, 461; 1 Dana, 36;1 A. K. Marsh. 22.
A motion against a sheriff for failing to pay over money is not, technically speaking, process. Notice of it is sufficiently given if the party read it; the service of a copy is not necessary. 1 Lit. 7; 1 Bibb, 259;1 Mon. 225. Notice of a motion which will apprise the defendant of the demand intended to be set up and certain to a common extent is sufficient. 1 Bibb, 267.
Appearance waives notice. 1 Bibb, 341.
The defendant should have pleaded to the jurisdiction of the county court.
John W. Moore filed his petition in the district court, alleging in substance that on the 11th day of November, 1840, he was ruled in one hundred and forty-eight cases, before the county court of Harris county, by one D. W. C. Harris, for costs due the said Harris, as clerk of the said court; and that judgments were obtained against him in the said cases. These were averred to be erroneous on several grounds; and a writ of error was prayed, requiring them to be sent up to the district court for examination and correction. In obedience to the writ, the clerk of the county court certified transcripts of the records of two several judgments, rendered on the 11th November, 1840; one of these in favor of D. W. C. Harris and others v. John W. Moore and Benjamin F. Smith; and the other in favor of the said plaintiffs against John W. Moore and A. Larson, B. Caraher, R. Walker, Charles Bowman and George Stevens. Both judgments were for costs due the plaintiff, on cases amounting altogether in number, to one hundred and sixty-one. But no judgment was sent up embracing one hundred and forty-eight cases, or in which the judgment was against John W. Moore alone.
The writ of error was dismissed from the district court, but on what grounds does not...
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First Dallas Petroleum, Inc. v. Hawkins, 05-86-00232-CV
...the beginnings of Texas jurisprudence. Luckett v. Townsend, 3 Tex. 119, 128 (1848); Cheek v. Rogers, 1 Tex. 440, 441 (1846); Moore v. Harris, 1 Tex. 36, 40 (1846). In 1846, Chief Justice Hemphill pointed out that, although in England appeal was the mode of review in courts of chancery and w......