Warren v. Barron Bros. Millinery Co.

• Citation: 23 S.W.2d 686
• Decision Date: 05 February 1930
• Docket Number: (No. 1127-5399.)
• Parties: WARREN et al. v. BARRON BROS. MILLINERY CO., Inc.
• Court: Texas Supreme Court

23 S.W.2d 686

WARREN et al. v. BARRON BROS. MILLINERY CO., Inc.

(No. 1127-5399.)

Commission of Appeals of Texas, Section B.

February 5, 1930.

Certified Questions from Court of Civil Appeals of Tenth Supreme Judicial District.

Action by Barron Bros. Millinery Company, Inc., against W. F. Warren and others. Judgment for plaintiff was affirmed by the Court of Civil Appeals, but on motion for rehearing questions were certified to the Supreme Court. Questions answered in accordance with opinion.

Tom Whipple, of Waxahachie, for plaintiffs in error.

Burgess, Owsley, Storey & Stewart and Thomas, Storey & Grady, all of Dallas, for defendant in error.

RYAN, J.

The honorable Court of Civil Appeals for the Tenth District presents the following certificate and question:

"This suit was instituted by defendant in error against W. F. Warren, constable, and his bondsmen, to recover the full amount of a judgment held by defendant in error against Annie E. Mitchell, which defendant in error had obtained against her in a Justice Court in Dallas County. The facts are without dispute. It appears that defendant in error had three executions issued on its judgment in Dallas County against Annie E. Mitchell, directed to the sheriff or constable of Ellis County, and same were sent to W. F. Warren as constable in Ellis County for execution. At the time W. F. Warren received each of said executions, the defendant therein, Annie E. Mitchell, had property within the knowledge of said constable of sufficient value out of which the judgment could have been made. Without giving any reason therefor, the constable returned each of said executions without executing same. Each of said executions was regular on its face and conformed to every provision of Article 2446 of the Revised Statutes relative to an execution issued by a Justice of the Peace. Neither of said executions, however, had attached thereto a certificate of the County Clerk, attested by his official seal, that the Justice of the Peace issuing the executions, or either of them, was in fact a Justice of the Peace in Dallas County, as is required by Article 2450 of the Revised Statutes. Thereafter a fourth execution was issued and had attached thereto a certificate as required by said Article 2450, Revised Statutes, but before it was received by the constable the defendant in execution, Annie E. Mitchell, had encumbered her property and said judgment could not then be collected.

"The trial court rendered judgment for defendant in error against W. F. Warren, constable, and his bondsmen for the full amount of said judgment, as provided by Article 3825 of the Revised Statutes. At a former day of this term of court we affirmed the judgment of the trial court. Motion for rehearing is now pending. Because the construction of said statute is involved, and by reason of the importance of the question at issue and since we have some doubt as to the soundness of our former opinion, we deem it proper to and do hereby certify to the Supreme Court for its determination upon the facts hereinbefore set out, the following questions:

"First: Where an execution issued by a Justice of the Peace is regular in all particulars,...