Ratcliff v. Hicks , 23 Tex. 173 ( 1859 )

Bell, J.

In this case, the appellees recovered a judgment in the court below against one Rufus R. Ratcliff. Execution issued on said judgment, and was levied on a negro girl slave. This slave was claimed by Mrs. Ratcliff, the appellant, and bond was given by her, for the trial of the right of property. At the first term of the court, after the cause was docketed, the claimant of the property failed to appear, and there was judgment by default for the plaintiffs in the writ. This judgment by default was set aside upon motion, and the cause was continued until the next term. At the, next term, the claimant of the property again failed to appear, and there was another judgment by default rendered in favor of the plaintiffs in the writ. A writ of inquiry was awarded. A jury was called, and the court submitted to the jury the issue, whether or not the slave was subject to the execution of the plaintiffs in the writ. The jury returned a verdict that the slave was liable to the execution. The court made a decree, that the property was liable to the execution, and rendered judgment against the claimant and the obligors in her bond, for ten per cent, damages on the amount claimed in the writ, that amount being less than the estimated value of the slave, upon whom the execution had been levied.

It is objected, that there was error in these proceedings, because the verdict of the jury did not find the value of the slave, on which the execution had been levied; and that, therefore, no proper data was furnished, to enable the clerk to issue execution, upon the failure of the claimant of the property to return the property to the sheriff, within ten days after judgment, as provided in Art. 2820 of Hart. Dig. It is to be remarked, in answer to this objection, that no issue as to the value of the property was presented to the jury, nor did the claimant of the property make any offer to show that the valuation of the property by the sheriff, was incorrect. In such case, it is not error in the court to adopt the valuation of the sheriff, though would be better, in all cases, to require the jury to find the value of the property, so that the court will be able to make such a decree as will ensure regularity in any proceedings that may become necessary after judgment. 1 (Wright v. Henderson, 12 Texas Rep. 43.) In this case, there was no decree prescribing the manner in which execution should issue, and the amount for which it should issue, in the event of a failure to return the property to the sheriff. We will not undertake, therefore, to correct the decree of the court, because it is not shown that the bond of the claimant of the property has been forfeited, or that any injustice had resulted to any party.

The proceedings upon the trial were not so precisely formal as they should have been; but because it does not appear that any injury has resulted to any party concerned, the judgment of the court below is affirmed.

We have made no comments upon the refusal of the district judge to grant a new trial upon the application of the claimant of the property, because the application did not show sufficient merits to authorize the granting of a new trial.

Judgment affirmed.