O'Conner v. Silver , 26 Tex. 606 ( 1863 )

Wheeler, C. J.

We are of opinion that the court erred in overruling the objections to the evidence offered to contradict the1 return upon the alias execution, for two reasons: 1st. There was no foundation laid for the introduction of the evidence in the petition ; 2d. It was not competent to contradict the return by parol’ evidence after so great a lapse of time.

The correction of the return, if erroneous, was- the subject of a direct proceeding for that purpose, ill which the groitnd Upon which the correction was asked must have been disclosed so as to-give notice to the defendant to enable him to come prepared to contest it. The petition in this suit to revive the judgment, took no notice of the entry of satisfaction upon the execution, although, unless set aside,fit afforded a conclusive answer to the action. The1 plaintiff might have asked to have it set aside in his petition in this suit, but his grounds must have been stated to enable the defendant to prepare for his defence. The suit was upon the record; and if the recovery depended upon matters outside of the record,they ought to have been pleaded. The general averment that the-judgment remained unsatisfied, was not sufficient, when it appeared by the return upon the execution, that it had been satisfied. The plaintiff should have averred matter sufficient to entitle him to have the return set aside. But after the lapse of nearly eight years, it was too late to contradict the return by parol evidence. If the entry of satisfaction was erroneously made on the execution, the plaintiff knew it, and was responsible for it; for it was the act of his attorneys who controlled the execution. He ought to have taken steps to set aside or correct the return and entry within a reasonable time, and while the facts may be supposed to-have- been fresh in the memory of the parties and witnesses. It'-. has been held that a credit entered on an execution will not be erased on motion made after five years after the return of the . execution and entry of the credit. (Haralson v. Holcombe, 10 Sm. and Marsh., 581; 8 Id., 493.)

The court doubtless proceeded upon the ground that the levy and sale were void, because the sheriff did not take possession of the property. If it be conceded that it sufficiently appears by the return that the sheriff did not take possession of the property, it also appears that a stranger to the record bid for the property the full amount of the execution; and the attorneys for the plaintiff thereupon made the entry of satisfaction upon the execution; from which the inference must be that the purchaser paid the amount of his bids, and that the execution was thereby satisfied. Though the purchaser acquired no title by his purchase at the sale, yet if he paid the amount bid for the property in satisfaction of the execution, the judgment was thereby discharged, and a suit to revive it cannot be maintained.

The judgment is reversed and the cause remanded.

Reversed and remanded.