E. Earl v. Asa Smith and others, 26 Tex. 522

Wheeler, 0. J. We are of opinion that the- judgment of the court dismissing the case is erroneous. The defendants were duly served with notice of the intended motion. Pleadings in justices’ courts are not, in general, required to be conducted in writing; and we do not think it a valid objection to the judgment of the justice, that the motion was not in writing. Nor do we think the objection well taken, that the term of office of the sheriff had expired before the proceeding was instituted. The statute (Hart.

Dig., art. 2378) allows five years within which •to move against the sheriff for failing to return an execution. As the term of office of the sheriff is but two years, it must have been intended that the proceeding might be instituted after the expiration of the term. «It is objected, that, at the date of the passage of the statute of limitations, there was no provision in the law for moving against a sheriff for failing to return an execution^—the execution law of 1839 having been repealed, and that of 1840 not providing for this proceeding'; (Hart.

Dig., arts. 1287, 1296, 1297;) and that the statute had reference to a suit against the sheriff in the ordinary mode by petition. But this construction is not warranted by the obvious meaning of the language of the statute. Besides, the Statute seems to have been framed with a view to give the right to move against the sheriff for failing to return an execution. Terms more express could not have been employed for that purpose; (Hart. Dig., art. 2878;) and the provision may have been inserted herd for the very reason that it had been omitted in the execution law of 1840, then in force.

We see no ground upon which the case could properly be dismissed. Instead of dismissing, the court ought to have proceeded to try the case upon the merits. The judgment is reversed and the cause remanded. Reversed and remanded.