Graves v. Hall , 13 Tex. 379 ( 1855 )

Wheeler, J.

The judgment on which this suit was brought, was rendered more than ten years before the institution of the suit. But an execution was taken out within the year, and others regularly from Term to Term of the Court, until within less than ten years next before the bringing of the suit. So that the last act of legal diligence was within time to prevent the bar of the statute or of the lapse of time, upon the principle of the case of Fessenden v. Barrett. (9 Tex. R. 475.) But the executions subsequent to the first did not purport to be an alias, a pluries, &c., and on that ground the Court treated them as nullities and gave judgment for the defendant, on the plea of the statute of limitations. And in support of the judgment we are referred to the cases of Bennett and wife v. Gamble, (1 Tex. R. 124,) and Scott & Rose v. Allen, (Id. 508.) Neither of these cases, as will be seen, enunciates any such principle as that, where executions have been regularly issued in respect of time, and the judgment and executions are before the Court, whereby it may be seen that they were so issued, the clerical omission to give them their proper numerical designation, will warrant their being treated as nullities.

The only principle determined in the first of these cases, which can be supposed to have any application to the present, is the construction or definition given to the “ due diligence” required by the Act of 1840, to preserve the lien of the judgment ; which was, that executions must be continuously issued from Term to Term, after the return of the first execution, required to be issued within the year, not satisfied ;■ and this principle was reaffirmed in the case of Hall v. McCormick. (7 Tex. R. 269.) The question here presented did not arise and was not considered in the case. If it was supposed, as from the brief of counsel for the appellee there is reason to suppose it was, that the case of Scott & Rose v. Allen is an authority for the judgment of the Court under revision, that case must have been singularly misunderstood. The same irregularity, it is true, which appears upon the face of the executions in this case appeared also there; but it was treated by the Court as the least important of the many irregularities which appeared in the proceedings. In noticing it the Court said it might be urged that “ as all the executions “ were before the Court, there was sufficient evidence to take “ the execution last issued, from the limitation of a year from “ the rendition of the judgment; and if no rights were affected, “ and it was only a question of lien to be kept up by a contiu unity of executions, we should incline to yield to its influ- “ enee.” (1 Tex. R. 515.) But because rights, deemed important to the defendant, accorded to him by the law then in force, had been affected, and by the course of proceeding he had not had the benefit of appraisement and the exposure to sale of property pointed out by him in satisfaction of the judgment ; which were conditions precedent to the right of the plaintiff to point out the property of the defendant, claimed under the execution then in question ; it was held that the right claimed by the plaintiff had not accrued ; and could not be conferred by the issuance of a third or fourth execution, unless the prerequisites to the exercise of the right had been complied with upon the previous executions. There, the question was as to the right of the plaintiff to point out property, without a compliance with the prerequisites of the law. Here, it is as to the use of the legal diligence necessary to preserve alive the judgment. And it is perfectly clear that neither of the cases cited affords a precedent for the judgment of the Court in this case. And, in so far as the intimation of opinion by the Court may be considered as authority, the case of Scott & Rose v. Allen is an authority against it, as is evident from the extract we have made from the opinion of the Court.

Though the executions in question were irregular in point of form, they were not nullities. They might have been amended; and when the Court has before it that which to amend by, a mere clerical omission will be considered as amended; upon the principle, that, as to mere matters of form, for the purpose of sustaining right, that will be considered as done which ought to have been done.

We are of opinion that the Court erred in its judgment; and as a jury was waived and the case submitted to the Court upon the evidence, which is embodied in the record, the judgment will be reversed, and such judgment here rendered as the Court below ought to have rendered.

Reversed and re-formed.