Thomas v. Browder

• Decision Date: 01 January 1870
• Citation: 33 Tex. 783
• Parties: W. H. THOMAS AND OTHERS v. H. E. BROWDER AND ANOTHER.
• Court: Texas Supreme Court

33 Tex. 783

W. H. THOMAS AND OTHERS

v.H. E. BROWDER AND ANOTHER.

Supreme Court of Texas.

1870.

1. The sureties of a sheriff are not liable for money paid to him by a judgment debtor after the return day of the execution held by the sheriff. Hamilton v. Ward, 4 Tex. 356, cited by the court.

2. Nor are the sureties of a sheriff liable for Confederate money received by him or his deputy on execution.

3. A payment of Confederate money on an execution in the hands of a sheriff was no payment at all, unless the plaintiff in execution had authorized its receipt by the sheriff.

4. A sheriff had the right to amend his return upon an execution; and the fact that a motion to amerce him was made before he amended his return only affected its credibility, not its competency. Vaughan v. Warnell, 28 Tex. 119, and Haley v. Greenwood, 28 Tex. 680, cited by the court.

5. A plaintiff in execution sought, in his original petition, to charge a sheriff and his sureties for the non-payment of money alleged to have been collected by the sheriff on the execution; but afterwards, and without abandoning his original petition, the plaintiff amended and charged the sheriff with misfeasance in office, and with gross neglect of duty for not having collected the money from the defendants in execution, who were alleged to be good and solvent men. Held, that the causes of action thus set up in the original and amended petitions are different, repugnant, and mutually destructive of each other. It is not decided, however, that the plaintiff might not, on payment of costs, have abandoned his original petition and proceeded on the causes of action alleged in his amendment.

6. An original petition and an amendment thereto must be taken together, and be regarded as parts of one entire exposition of the plaintiff's cause of action.

ERROR from Dallas. Tried below before the Hon. A. B. Norton.

The facts are substantially disclosed in the opinion of the court. The execution was issued in July, 1861, returnable to the then ensuing November term of the court.

J. K. P. Record, for the plaintiffs in error.

No brief for the defendants in error.

WALKER, J.

The testator of the defendants in error, on the fourth day of June, 1861, obtained a judgment in the district court of Dallas county, for the sum of one hundred and seventy-seven dollars and ten cents, against J. P. Jennings and J. D. Stratton. Execution issued, directed to Allen Beard, sheriff of Dallas county. Indorsements on the execution are as follows:

“Received, October 19, 1861, one hundred dollars in Confederate money.

WM. M. CHENALT,

Deputy Sheriff, D. C.”

“Received, January 1, 1862, on the within, fifty dollars.

A. BEARD, Sheriff.”

C. J. Browder gave a power of attorney to J. M. Browder on the thirty-first day of March, 1860, to collect the debt by suit or otherwise, and certain other things mentioned in the power; and under this power J. M. Browder demanded the money, which the judgment against Jennings and Stratton called for, from Beard, the sheriff, which he refused to pay over. Suit was brought by C. J. Browder on the sixteenth day of April, 1866, against Beard and his securities, on his official bond. Pending the action in the district court, C. J. Browder has died, and the appellees, administrators with the will annexed, were made parties, and the securities of Beard, the sheriff, caused Chenalt, the deputy, and his securities to be made parties. His securities are not liable for the fifty dollars received...