Scott v. Allen

• Decision Date: 31 December 1846
• Citation: 1 Tex. 508
• Parties: JOHN W. SCOTT AND WILLIAM P. ROSE v. EBENEZER ALLEN
• Court: Texas Supreme Court

1 Tex. 508

JOHN W. SCOTT AND WILLIAM P. ROSE

v.EBENEZER ALLEN

Supreme Court of Texas.

December Term, 1846.

Appeal from Bowie County.

When an appeal is taken from the judgment of a district court, overruling a motion to quash an execution, an appeal bond in double the amount of the costs accruing under such judgment will satisfy the provisions of the 136th section of the act to regulate proceedings in the district courts, approved 18th May, 1846.

So, when a plaintiff appeals, a like bond is sufficient.

A judgment overruling a motion to quash an execution is a final judgment and may be appealed from.

An execution cannot be quashed after it has performed its functions and been returned by the sheriff.

In reviewing a judgment refusing to quash a levy and the return thereof made by the sheriff, the appellate court is not restricted to the particular grounds assigned for the motion in the court below.

An execution not sued out within a year from the rendition of the judgment is void under the limitation act of 5th February, 1841. [Overruled, 29 Tex. 31.]

It should appear on the face of an execution, whether it be an original one, an alias or a pluries.

Four executions were issued on the same judgment. The sheriff returned on the first that he had made a levy on the property pointed out by the defendant, but that the plaintiff not attending to select an appraiser, he could not get any one to act as such for the plaintiff and did not offer the property for sale. The same return was made on the second and third. The return of the levy on the fourth execution showed that it was made on property pointed out by the plaintiff. Held, that the levy and returns upon the three first executions were not in accordance with the execution law of 1842; that the plaintiff had consequently no right to point out property for the last execution to be levied upon, and that the levy and return thereon must be quashed.

This case came up on an appeal from the judgment of the district court on a motion made by the appellant to quash an execution and the return thereon, in favor of the appellee and against the appellant.

The motion was predicated on the following grounds:

1st. That three other executions had issued previously on the same judgment and that the said last execution issued on the same day, the third of the said executions was returned.

2d. That the supposed clerk who issued the executions had not, at the time the last execution issued, taken the oath prescribed by the constitution of the United States and the constitution of the state of Texas.

And it was further moved that the levy and return on the said execution be quashed on the following grounds:

1st. That the said sheriff had not taken the oath prescribed by the constitution of the United States and by the constitution of Texas at the time he made the said levy and return on the said execution.

2d. That the said defendants, nor either of them, had the privilege allowed to them by law of pointing out property to satisfy the said execution.

The motion to quash was overruled, and the appellants who were the defendants in the execution thereupon took this appeal.

Before arguing the question as to the correctness of the judgment of the court below in overruling this motion, the appellee's counsel moved to dismiss the appeal and the appellants moved for the award of a certiorari to the clerk of the court below to send up a more perfect record. The grounds of the motion to dismiss will appear in the following opinion of the court, delivered by Mr. Justice Lipscomb, overruling the same.

Allen and Morrell, for the motion.

Taylor and Webb, contra.

LIPSCOMB, J.

The motion to dismiss is on two grounds. Others have been assigned in the motion, but are believed by the court not to come properly before us on the motion to dismiss.

The first is on the ground that bond for prosecuting the appeal has not been given in conformity to the statute of the last session of the legislature. See Acts of the Leg. Texas, 1st session, 398, 399. The 134th section provides that any party believing himself to be aggrieved by any judgment or decree of the district court may appeal to the supreme court from such judgment or decree during the term of the court at which such judgment or decree has been rendered. The 136th section provides, that any party taking an appeal shall, within twenty days after the term of the court at which the judgment or decree was rendered, enter into bond with two or more sureties, to be approved by the clerk of the court, in double the amount of the debt or damages, etc.

The first section referred to gives the right to appeal, and the last directs that the bond shall be taken in double the amount of the debt or damages. It is seen from the record that the appeal is from the judgment of the court below in overruling a motion to quash an execution. On such a motion, the judgment, not reaching beyond the execution, could not under any conceivable circumstances, be for anything but cost; and in such cases, costs only would be the debt to be secured by the appeal bond.

On overruling the motion to quash the execution in this case, the court below gave a judgment for costs against the appellant. Bond in double the amount of that judgment for costs will be within the provisions of the law. The bond seems to have been taken in a sufficient amount to cover the costs. In like manner when a plaintiff appeals, there is no judgment in the court against him for more than cost, and consequently, his bond will be in an amount to be double the costs. On the motion to quash the execution the appellants were before the court in the attitude of plaintiffs.

The second ground is, because the proceedings in the court below were not such as to authorize an appeal thereon, from its decision to this court, that decision being neither an interlocutory nor a final judgment in any civil action. It is true that it is not an interlocutory judgment; but it does appear to be a final judgment. It disposes of the subject-matter before the court, not again to be presented, and that too, by giving judgment for costs. If costs had been awarded on an incidental motion to abide the final issue of a pending cause, there would be no judgment for the costs until the cause was finally disposed of; but the judgment for costs was given on the final disposition of the motion. We believe that it was a subject from which an appeal can be received, and consequently, the motion to dismiss is overruled. The appellant has moved for a certiorari, and it is alleged in the motion that the defects are apparent on the record. On a reference to the record it will be seen that it shows the execution sought to be quashed, and all the executions that had issued in the case before it, with the returns on them. It shows the motion of the appellant, the ground on which it was made and the action of the court below. The grounds assigned for the motion to quash the execution are also fully shown.

It seems to us very clear that on a review of the action of the court below on the above proceedings, we can have nothing at all to do with the record of the case on which the execution issued. Our appellate powers are properly restricted to the record of what was done on the appellant's motion, and we can perceive no diminution of the record of those proceedings; but on the contrary, it is believed to be fully sufficient for this court to understand every thing material to be considered in revising the judgment of the district court on the appellant's motion. The certiorari is therefore refused.

The motion to dismiss and for a certiorari having been refused, the cause was then argued on the judgment of the court below overruling the motion to quash the execution.

John Taylor and J. Webb, for appellants.

Allen and Morrill, for appellee.

The facts of the case were stated by the court.

LIPSCOMB, J.

It has been contended by the appellee, that only one question is brought up for revision in this case, and that is, whether the execution should be quashed or not; that the question as to the levy and return is not presented; that the record of the judgment uses the word motion, and by strict grammatical construction, it could embrace but one motion; and that it would be left uncertain, as to which of the two motions were intended to be operated on, but then, they both appear to have been before the court and the bill of exceptions shows that they were both overruled. The only construction we can give the judgment and give to it any effect is to make it embrace both motions. There is certainly a manifest distinction between quashing an execution and annulling or setting aside the levy and return thereon; for the power of the court may well be questioned to quash an execution after it has been into court, and performed its office, and had become functus officio; but the levy and return would still be in a condition to be acted on by the court. Sometimes from a want of precision they seem to be used as convertible terms, such as the execution ought to be quashed, when the levy and return is intended. They are, however, both before us, and the first in order is the motion to quash the execution. We might dispose of this by a reference to the case of Toler & Crosby v. Ayres, decided at this term, that an execution cannot be quashed after it has performed its functions and been returned. The ground of the motion, however, may receive a passing notice. It is alleged that it was improperly issued. If so, the appropriate remedy would have been by a supersedeas, applied for in proper form; before it had performed its office. We shall, however, in the course of our investigation, return again to this execution in discussing the circumstances under which it issued, and its sufficiency to support the levy and return. There is nothing in the second ground assigned for quashing the execution, but as it is again presented in the second motion, we will...