Allen Haley et al. v. Moses Greenwood & Co., 28 Tex. 680

Donley, J. —This was a motion by the defendants in error against the plaintiffs in error, as the sureties of C. Coulson, sheriff of Johnson county, for failing to pay over money collected on execution in favor of the defendants in error.

A motion was filed by the defendants in error on the 2d day of April, 1857, against Coulson, alleging that in 1856—the precise date not stated—an alias execution was issued on the said judgment, with instructions by their attorney to levy immediately and make the money, and that the plaintiffs’ attorney designated property and instructed the sheriff in person to levy and sell immediately.

It was averred that the execution was returnable to the April term, 1857, of the District Court of Hill county; that the sheriff of Johnson county had failed to return said execution with his action thereon; that he had failed and neglected to make the money on the execution, and was in contempt of court. Judgment was prayed against the sheriff and his sureties, without naming them or alleging that they had executed any bond as his sureties.

On the 14th of August, 1857, the defendants in error filed an amended or new motion, in which it was alleged, that their agent, in October, 1856, sent to Coulson, the sheriff of Johnson county, the execution in their favor, with instructions to levy and make the money immediately; that the defendant in the execution had property which was liable to execution, and amply sufficient to satisfy the process.

It is averred that the execution was returnable to the preceding term of the court, and that the sheriff had failed to return the same with his action thereon ; that he had made all the money due on the execution, about $351, with interest thereon from the 12th day of December, 1857, and $9 40 costs; that the plaintiffs demanded the money of the sheriff about the 1st of June, 1857, and that he had failed and refused to pay the same, except the sum of $255 25; and that the sheriff and his sureties are liable to pay to the plaintiffs the remainder of the debt, with ten per cent, interest.

It is averred that the said sureties are legally liable as such upon the official bond of the said sheriff, conditioned and approved as the law directs. It is not averred, however, that the sureties executed the bond, and there is no amount stated in which the sureties are bound. A rule is prayed against the sheriff and his sureties, to show cause why the sheriff should not be fined as for contempt of court, and for judgment against him and his sureties for the remainder due on the execution, with ten per cent, interest per month thereon.

The transcript in this cause does not present clearly the action had in the case in the court below. It is believed that it was intended to make the second motion an amendment of the first. An order of court appears in the transcript, with reference to other proceedings had in the cause at the fall term, 1857, to the effect, that it appearing to the court that alias execution issued on the — day of October, 1856, to the sheriff of Johnson county, in favor of said Moses Greenwood and others, against M. L.

Rucker, returnable to the preceding term of the court, and that the sheriff of Johnson county had failed to return the said execution, a fine of $100 is assessed against him for contempt of court, and that scire facias issue against him, returnable to the next term of the court, to show cause why such fine should not he made final. Upon this judgment a scire facias appears to have been issued on the 19th .day of January, 1858, to the sheriff of Johnson county, commanding him to summon the said C.

Coulson and his sureties, without naming them, to appear at the spring term, 1858, of the District Court of Hill county, to show cause why such judgment should not be made final. In the motion of August 14, 1857, are given the names of Charles Coulson, as sheriff of Johnson county, and of Absalom Ledbetter, Wiley Long, John F. Lavarre, G. A. Rucker, James Haley, and Allen Haley, as the sureties on the official bond of the. said Charles Coulson. The scire facias, which requires the sureties to be cited, but does not give their names, was returned executed on A. Ledbetter, W. O.

Wright, Allen Haley, Wiley Long, Edmond Turger, James Haley, and G. A. Rucker, and returned not executed as to Charles Coulson and John F. Lavarre, it being stated that they are not residents of Johnson county. Though not stated, it is supposed that this return was made to the spring term, 1858, of the court. On the 26th of April, 1858, four additional writs appear to have issued, in each of which the officer is required to cite Charles Coulson, sheriff, and John Lavarre, G. A. Rucker, James Haley, and Allen Haley, to answer the motion of Moses Greenwood & Co., a copy of which accompanies the writ for service.

In none of these writs are the names stated of the parties to the motion in which the citation is attempted to be given. It is" provided by law that “the style of all writs and process shall be ‘ The State of Texas,’ and shall be tested in the name of the clerk of the court from 'which it issued. It shall also state the names of the parties to the suit; the time and place of holding the court; shall be dated and signed by the clerk, with the seal of the court affixed.” (O. & W. Dig., Art. 409; Paschal’s Dig., Art. 1431, Rote 543.) It was held in Frosh v.

Schlumpf, 2 Tex., 423, that a party upon whom defective process has been served may appear and take advantage of it, in limine, by a motion to quaph, or he may, upon writ of error, obtain a reversal of any judgment rendered by default in the suit. In Cook v. Crawford, 1 Tex., 9, the suit was against William M. Cook and Gabriel S. Cook, who were alleged to be partners. The writ directed the sheriff to summon William M. Cook to appear and answer. It made no reference to Gabriel S. Cook, and it was served on William M. Cook alone.

The counsel for the defendant filed exceptions to the proceedings on account of the variance between the petition and the writ. The court held the objection well taken to the regularity of the proceedings. In Burleson v. Henderson, 4 Tex., 49, the suit was instituted by Governor Henderson, for the use of the State, against Nicholas Boyer, David Halderman, and Edward Burleson. A citation was issued for each defendant, requiring him to appear, &c. It was held that the statute requires all the defendants to be named in the writ, and, this provision being disregarded, the citations could not be sustained.

Article 1333 of Hartley’s Digest provides that, “ should any sheriff, or other officer, fail or refuse to pay over money collected under an execution, when demanded by the person entitled to receive the same, he shall be liable to pay ten per cent, per month on the amount so collected, besides interest and costs, which may be recovered of him and his sureties by motion before the court from which said execution issued, three days’ previous notice being given.” (Paschal’s Dig., Art. 3781, Note 872.)

Article 564, of Oldham & White’s Digest, provides that notices may be served by an officer authorized by law to serve original process in the court in which the suit is brought, or by any person who would be a competent witness, and every such notice may be served as an original writ, &c. (Paschal’s Dig., Art. 1463, Note 561.) In this case it would have been sufficient notice if the defendants had been furnished with a copy of the motion, with a writing stating the day the motion would be acted upon and disposed of by the court, and it is immaterial whether this fact be made to appear by the return of an officer authorized to serve the notice, or by a private citizen, verified by his affidavit.

The writs have the return of the officer indorsed on them in this case. The first writ, dated January 19, 1858, does not give the names of any of the sureties who are to be cited; the sheriff is left to learn, as best he may, who are the sureties he is required to cite, and on this writ he does cite two parties, who do not appear to have any connection with the motion or the matters involved in this litigation.

If it were attempted to sustain the service, upon the ground that the motion gives to the parties on whom it is served information of the matter involved in the controversy, yet the further question arises, has he received a copy of the motion? It is believed that the record in this ease does not show that such copies were received. The writ, with the endorsement upon it, shows only that the party had received a copy of a motion in which Moses Greenwood & Co. were plaintiffs, but gives no information as to who are defendants in the motion. The service in this case is manifestly insufficient.

If the service were insufficient, the motion could not be sustained against the sureties on the facts. To render the sureties liable, the sheriff must have received the money before he was, by law, required to return the execution. If the money was paid to the sheriff by the defendant in execution after the return day of the execution, and the sheriff misapplied the money, his sureties are not liable. (Hamilton v. Ward, 4 Tex., 363.) There is no statement of the facts in the cause, and it cannot be said precisely when the money was received by the sheriff.

If it had been averred that the money was received on the execution before the return day, there being no statement of facts, the presumption would arise that the allegation was sustained by the evidence. In the event of the verdict being for the plaintiffs below, it could not be disturbed in the absence of a statement of facts, if the pleadings are sufficient to authorize it. It is averred that the sheriff made all the money upon the execution, and that the plaintiffs, on or about the 1st day of June, demanded the money, and that the sheriff failed to pay it, except the sum of $250, leaving a balance unpaid.

The plaintiffs’ motion of the 2d of April, 1857, is for not returning the execution, the return day having then passed, and it is averred that no money had been collected on the execution to that date, to the knowledge of the plaintiffs. It clearly devolved on the plaintiffs to show by allegation and proof that the sureties of the sheriff were liable. To do this, they must show that the money was received while the execution was in force; and this the plaintiffs have failed to do. The judgment is reversed, and the cause Demanded.