Sanders v. Waghalter , 1917 Tex. App. LEXIS 162 ( 1917 )

In disposing of this appeal it is necessary to refer to only two of the contentions made by appellant.

One of the two is that the court below was without jurisdiction of the suit, because it was for a sum which did not exceed $200, exclusive of $14, which it is asserted was claimed as interest on the $198.70. If it appeared that the recovery sought of the $14 was for interest allowed by the statute, the contention should be sustained. But it will be seen by reference to appellee's pleadings, set out in the statement above, that his suit was for damages for an alleged conversion by the sheriff of the $198.70, and that he did not seek a recovery of the $14 as interest allowed by the statute, but as damages resulting to him from being deprived of the use of the $198.70. Therefore, in determining the question made as to the jurisdiction of the court below, the $14 sued for should not be treated as "interest" within the meaning of the Constitution, but as an element of damages suffered by appellee as a result of the alleged conversion by the sheriff of the $198.70. So treating it, the suit was for a sum in excess of $200, exclusive of interest, and the court below was not without power to hear and determine it. Baker v. Smelser, 88 Tex. 26, 29 S.W. 377, 33 L.R.A. 163; Dwyer v. Bassett, 29 S.W. 815; Railway Co. v. Faulkner, 118 S.W. 747.

The other of the two contentions referred to is that it appeared that the sheriff was not guilty of a conversion as charged by appellee of the money, or any part of it, paid to him by McConkin in satisfaction of the execution. This contention should be sustained. It was not pretended in the court below, nor is it here, that the execution in the sheriff's hands at the time the money was paid to him was not, "in due form of law, regular upon its face, and duly authenticated from a court having jurisdiction of the subject-matter" of the suit, resulting in the judgment on which it was issued. State v. King, 30 Ind. App. 389,66 N.E. 85. Such being the character of the process, the sheriff not only possessed the right, but it was his duty, to collect of McConkin the amount of the writ, and, having collected same, to pay it over to the bank. The fact, as testified to by the witness, O'Banion, that the sheriff knew, he declared, "that the execution was not correct, as the bank was not entitled to all that money," did not deprive the sheriff of the right conferred, nor relieve him of the duty imposed, on him by the writ in his hands. Tierney v. Frazier, 57 Tex. 437; Randall v. Rosenthal, 31 S.W. 822; State v. King, 30 Ind. App. 389, 66 N.E. 85; Western Seed Co. v. McDonald, 5 Neb. (Unof.) 553, 99 N.W. 517; 35 Cyc. 1744, 1750; 1 Cooley on Torts, pp. 891 to 894. The rule, as stated by Judge Cooley (page 893), and recognized in Tierney v. Frazier, supra, as controlling in this state, is that:

"The officer may safely obey all process fair on its face, and is not bound to judge of it by facts within his knowledge which may be supposed to invalidate it."

Nor do we think the testimony of the witness O'Banion that the sheriff promised to hold the money paid to him until McConkin "could get the judgment and execution corrected" authorized the recovery had by appellee. It did not appear in either the pleadings or the evidence that the money would not have been paid as it was by McConkin to the sheriff had the latter not made such a promise. On the contrary, it appeared that the money was not paid until the return day of the execution, and that it was paid then "to prevent the sheriff from levying on the property of the sureties on McConkin's bond."

On the facts shown by the record it is clear, we think, that appellee's cause of action, if any, was against the bank, and not against the sheriff and the sureties on his bond. Therefore the judgment will be reversed, and judgment will be here rendered that he take nothing by his suit