Shapard v. Bailleul
| Decision Date | 31 December 1848 |
| Citation | 3 Tex. 26 |
| Parties | THOMAS P. SHAPARD v. A. BAILLEUL |
| Court | Texas Supreme Court |
OPINION TEXT STARTS HERE
Appeal from Washington County.
If an execution be not sued out within a year from the rendition of the judgment, the lien created by the judgment ceases to operate; and the plaintiff will be required to resort to a scire facias, or an action on his judgment.
When an appeal is taken and security given, all proceedings on the judgment are suspended; and so long as that impediment exists, it affords a sufficient excuse for not suing out an execution; but when it ceases, the diligence which the law exacts of the plaintiff requires him to use all the means placed in his hands to enforce the collection of his judgment.
If the defendant in the judgment takes an appeal, and does not prosecute it at the next succeeding term of the supreme court, the supersedeas to the judgment is at an end, and the plaintiff may sue out his execution; and if he neglect to do so for more than one year, he does not use the diligence required to keep up the lien of his judgment.
The object of the law in requiring diligence on the part of the plaintiff to enforce the lien of his judgment, is to protect intervening rights, and also to prevent collusive liens.
Case stated in the opinion.
WEBB for appellant.
J. WILLIE for appellee.
This action was brought to recover a certain lot in the town of Washington. The plaintiff claims title by virtue of a purchase, at sheriff's sale, of the property sued for. The defendant claims by purchase from one of the defendants in execution prior to its issuance. There was a verdict and judgment for the defendant, from which the plaintiff appealed.
It appears, from the record, that on the 17th day of March, 1840, in the district court of Washington county, Hood, Shapard & Co. obtained a judgment against D. B. Friar & Co., from which an appeal was prayed and allowed; and a paper, purporting to be an appeal bond, was filed on the 20th March, 1840, in the office of the clerk of the court. It is, however, alleged to be so defective as not to be binding on any one. This bond was executed by Bailey, one of the firm of D. B. Friar & Co., and another person as his security. The appeal appears not to have been prosecuted, as, on the 19th of June, 1843, the clerk of the supreme court certified that no such suit had been filed in his office up to that date; and on the 30th of June, the same year, the first execution was issued on the judgment obtained in 1840. This execution was levied on the lot in controversy, and, after several other executions, the lot was sold.
The most important inquiry is as to the validity of the first execution after such a lapse of time; and, in the prosecution of this inquiry, it will be necessary to examine our laws regulating executions.
The 12th section of an act concerning executions, passed on the 5th February, 1840, provides “that whenever final judgment shall be rendered by the supreme, district or county courts of this republic, it shall operate as a lien on all the property of the defendant, situated and being in the same county where judgment is rendered, from the day of the date of the judgment: provided, that said lien shall cease to operate, if execution be not issued out within twelve months from the date thereof, and due diligence be not used to collect the same” [Acts 4th Cong. p. 95.]
The first part of the 2d section of the act of limitation, passed the 5th February, 1841, provides “that judgment in any court of record within this republic, where execution hath not issued within twelve months after the rendition of the judgment, may be revived by scire facias, or action of debt brought thereon, within ten years next after the date of such judgment, and not after.” [Acts 5th Cong. p. 164.]
The above are believed to be the statutory regulations in relation to executions; and it is manifest that, according to the section first cited, the execution not having been sued out within the year from the rendition of the judgment, the lien ceased to operate. And it will be seen by the last section cited from the law of limitation, that if the execution had not been issued within twelve months, on the judgment, that the plaintiff would be required to resort to a scire facias, or an action on his judgment. The conclusion is, therefore, that the execution, under which the sale was made to the plaintiff, was void, because it had not been sued out within a year from the rendition of the judgment, unless the fact of an appeal should produce a different result.
The act we have cited seems to be imperative, and without any conditions or qualifications, that the lien shall cease to operate if the execution is not sued out within twelve months from the date of the judgment; and, if literally taken, would not admit of any excuse -- not even if the party was restrained by an injunction from issuing out his execution. It cannot be denied that the law-making power could,...
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Moore v. Letchford
...by the judgment ceases to operate; and the plaintiff will be required to resort to a scire facias, or an action on his judgment.” Shepard v. Bailleul, 3 Tex. 26. The same point, under a later statute, is decided in North v. Swing, 24 Tex. 193. “In Ohio, a judgment is a lien on the lands of ......
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Cherry v. Speight
... ... Berry v. Shuler, from Caldwell, not reported [25 Tex. S. 140]; Shapard v. Bailleul, 3 Tex. 26;3 Smedes & M. 23, 213. It is true, there are some cases in Massachusetts, based upon the local statutory provisions of that ... ...
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Hancock v. Metz
...plaintiff in error. The execution under which the defendant derives title was void, and could convey no title to the purchaser. (Shapard v. Bailnul, 3 Tex. 26.) The deposition of the old clerk was not competent evidence to prove the issuance of an execution. The execution purports on the fa......
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