Murray v. Evans

• Decision Date: 06 February 1901
• Citation: 60 S.W. 786
• Parties: MURRAY v. EVANS.
• Court: Texas Court of Appeals

60 S.W. 786

MURRAY v. EVANS.

Court of Civil Appeals of Texas.

February 6, 1901.

Error from Tom Green county court; Milton Mays, Judge.

Action by Isaac C. Evans against L. B. Murray. Judgment for plaintiff, and defendant brings error. Affirmed.

J. W. Hill, for plaintiff in error.

KEY, J.

The basis of this action is the following pleading: "Isaac C. Evans vs. J. D. O'Daniel et al. (No. 240.) In County Court, Tom Green County, Texas. Now comes the plaintiff in the above styled and numbered cause, and represents to the court as follows: That the plaintiff herein, on the 8th day of October, 1890, recovered a judgment against the defendants herein, J. D. O'Daniel and William Thaison, for the sum of $352.67, with interest thereon from said 8th day of October, 1890, at the rate of 8 per cent. per annum, together with all costs of suit. That on the 23d day of May, 1891, an execution issued thereon to Tom Green county, Texas, which execution was returned indorsed as follows: `Came to hand the 27th day of May, 1891, not executed. No property of J. D. O'Daniel or Wm. Thaison in this county subject to execution. J. W. Johnson, Sheriff Tom Green County, Texas.' That on the 22d day of July, 1899, an alias execution issued on said judgment to Coke county, Texas, and was on the 24th day of July, 1899, placed in the hands of L. B. Murray, sheriff of said Coke county. That said Murray failed and refused to execute said alias execution, and returned same on the 7th day of August, 1899, not executed. That since the rendition of the judgment hereinbefore mentioned the defendant William Thaison died, and left no property in this state subject to execution sufficient to satisfy said judgment. That at the time said alias execution was delivered to said Murray, sheriff as aforesaid, said defendant O'Daniel had real and personal property in his possession in said Coke county subject to execution sufficient to satisfy said alias execution, and that said judgment was at that time, and ever since the rendition thereof, in full force and effect, and that said Murray could have made the amount of money in said alias execution specified had he made the levy therein required and commanded. Wherefore, premises considered, plaintiff prays that he have judgment against said L. B. Murray, sheriff of Coke county, Texas, for the amount of his said judgment against said J. D. O'Daniel and Wm. Thaison, less the sum of $217.70 paid and credited on said judgment, November 8, 1893, for interest thereon from date of rendition thereof at the rate of 8 per cent. per annum, for costs of suit, and for such other relief, general and special, to which he may show himself entitled. Allen & Briant, Attorneys for Plaintiff." This petition or motion was filed September 20, 1899. No citation or notice to the defendant Murray was issued, but the record contains the following acceptance of service: "Isaac C. Evans vs. J. D. O'Daniel et al. (No. 240.) September 21, 1899. In County Court, Tom Green County, Texas, October Term, 1899. I hereby waive the issuance of a citation, and accept service in the above-styled and numbered cause. Witness my hand, this 22d day of September, 1899. L. B. Murray, Sheriff of Coke County, Texas." This paper was filed October 3, 1899. October 6, 1899, a judgment was rendered against the defendant Murray for the amount due on the judgment against O'Daniel and Thaison, with interest thereon at 8 per cent. from the date of the judgment under consideration. This judgment recites that the defendant Murray made default, but also states that the court heard evidence before rendering judgment.

There is no statement of facts in the record. The defendant Murray has brought the case to this court by writ of error, and assigns numerous errors for which a reversal is sought. Without referring to the assignments in detail, the opinion will consider and determine the principal questions presented, and those not referred to in the opinion are nevertheless decided against the plaintiff in error.

Treating this proceeding as it was treated in the court below, and evidently intended by the plaintiffs in that court, as a motion against the defendant on account of his failure to execute a writ of execution, as authorized by article 2386 of the Revised Statutes, we are of opinion that the waiver and acceptance of service filed by the defendant dispensed with the issuance and service of notice of the motion as required by that article. Conceding, as contended by counsel, that a distinction exists between a citation and the notice required by article 2386, and that the waiver of citation alone would not operate as a waiver of notice, still we thin...