Robinson v. Schmidt

Moore, Associate Justice.

We have been cited to no-statute authorizing the service of process from the District Court by a town or city marshal because the sheriff may be-a party to, or interested in, the suit or proceeding in which such process is issued. If the sheriff is disqualified- from executing process, the duty otherwise incumbent upon him, when the service here in question was had, unquestionably devolved upon one of the constables appointed for each of the-justices’ precincts of the county in which such sheriff resides. (Art. 5, sec. 21, Const. 1869; Paschal’s Dig., arts. 995, 1014; McClane v. Rogers, 42 Tex., 214.)

It is insisted, by defendants in error, that service of a character similar to that here complained of, has heretofore been held sufficient by this court. In support of this proposition, we are referred to the case of Burns v. Jones, 37 Tex., 50. The reporter, in his statement of this case, says: “The citation was served upon the defendants by the town constable of the town of La Grange, and the defendants, Burns and-wife, moved to quash the return, insisting that the officer was; not a ‘ constable of the county.’ The overruling of this motion was reserved, and assigned as error.” The only reference made in the opinion of the court to this assignment, is contained in the following brief sentence: “ Service by any constable residing within the limits of the county, though he be elected or appointed to serve .within a city, town, qr. village, is a sufficient compliance with the statute.”

Row, although we cannot certainly determine, either from the statement of the case by the reporter, .or’from the opinion of the court, the character of the officer by whom the citation was served, it is quite evident that it cannot, with any confidence, be asserted that the court intended to hold that process from the District Court issued to a constable might be properly served by the marshal of a city, town, or village, which we must do to recognize this case as an authority in support of the proposition for which it is cited.

While there are certain duties of a similar character which :are to be performed by city, town, and village marshals, and constables, in their respective jurisdictions, there is certainly a marked difference in their character and functions. And we are not warranted in supposing that they have, been otherwise regarded or referred to in the Constitution and laws, or in the opinions of our predecessors. And although it may not be strictly accurate to call or designate one of the constables of a county the “town constable,” yet, as the justice of the peace and constable for the precinct in which the county seat or courthouse is situated, is not unfrequently referred to and spoken of as the constable or justice of the town where his court is held, we should rather infer that the objection upon which the court was passing was based upon an erroneous or defective description or official designation of the officer by whom the citation was served, than that the citation was served by a municipal instead of a county officer. At all events, we do ,not feel at liberty to make, as it seems to us, so palpable a departure from the obvious purpose and plain language of' the Constitution in force when this citation or notice was served, as we should have to do if we should hold it valid.

But it is insisted, by defendants in error, that if there was any defect in the service, such defect was waived by the voluntary appearance of the parties making the objection. Or if not, still none of the plaintiffs in, error, except Robinson, can now complain of the refusal of the court to quash the service.

The first of these propositions, relied upon by defendants in error, has been directly passed upon and decided adversely to them by this court, and it need not, therefore, be now further considered. (Hagood v. Dial, 48 Tex., 625.) And if it was conceded that no exception to the service was properly taken by or for any of the parties but Robinson, it would in no way affect the result of the case in this court on the present writ of error. There can be but one final judgment in the case. The judgment as rendered in the District Court is an entirety, as to all of the parties against whom it is entered. It cannot be reversed and remanded as to some of the parties, and affirmed as to others, as has been often held by the court.

We are not prepared to say, on this record as presented to us, that the District Court of Anderson county had not jurisdiction in the premises. If this proceeding should be regarded as an ordinary suit against the sheriff’ and his sureties for a breach of official duty, we agree with the counsel for plaintiff’s in error, that it should have been brought in the county in which they resided at the time it was instituted. But we are not warranted in saying, from the record as now before us, that it should have been, or was, thus treated or regarded by the parties or the court below. Throughout the original application, it is certainly denominated and called, by the parties instituting the proceeding, a motion. The language used by the draughtsman seems to indicate that it was intended as a proceeding under the statute authorizing a motion against the sheriff and his sureties for a breach of duty as therein charged. The citation or notice directed to the plaintiffs in error, informs them that they are required to answer the “motion ” exhibited against them, &c.; that the marshal by whom the service was made, calls the copy delivered to the parties served a “copy of the petition”;- and that the application contains a full, or even “ a prolix,” statement of the grounds upon which it is based, or, indeed, that it may have contained unnecessary averments, and asked a judgment beyond that to which the applicants were entitled by the statute, would seem of no great significance, when the applicants themselves were evidently seeking to, and supposed that they were, proceeding under and in conformity to the statute. Whether this application was placed upon the motion docket, and disposed of with the dispatch consistent with the interest of the parties, and especially those who are required, it may be, to appear and answer a demand made against them in a distant county from that in which they reside, and where an ordinary suit could not have been brought against them, we do not feel now called upon to determine; and if we were, we are by no means sure we could do so in a very satisfactory manner, on the record as now presented.

Where a- summary proceeding of this character is authorized by statute, its requirements must unquestionably be strictly followed, as has been often held by this court. And if they are not, if action by the court is properly invoked in manner and time, the rights of the parties will be fully secured and protected.

Treating this proceeding as a motion for the failure to levy an execution, we think it was properly made in the court from-which the execution issued. Language precisely similar to that in the statute authorizing this motion, has been heretofore construed by this court, and held to authorize the motion in the county where the judgment on which the execution issued was rendered. This construction, as the court says, is in accord with what is believed' to have been the long-settled practice and practical construction given the statute. (Griswold v. Chandler, 22 Tex., 637.)

The remaining errors discussed by counsel are not presented by the record in such a manner .as to require notice from the court; and may, and properly will, not be presented on another trial in precisely the same light in which they are now exhibited and discussed by counsel. It can, therefore, be of little service for us to express an opinion in reference to them. We will remark, however, that the defects in the charge of the court, and the alleged excess in the verdict of the jury, resulted, probably, more from the failure of the counsel of plaintiffs in error to ask such qualifying and explanatory instructions as the law and facts would have warranted, or from their failure to introduce proper evidence to this end, rather than from any positive error in the court. For instance, while the statute (Paschal’s Dig., 3796) declares that, if the sheriff fails to make a levy, when in his power so to do, being thereto required by the plaintiff, he shall pay to the plaintiff in execution the full amount of the debt, interest, and costs. We hardly suppose that the learned judge who presided on the trial of this motion, though holding, as it. seems from his instructions to the jury, that proof of the failure to levy the execution would render him and his sureties prima-facie liable for the full amount of the debt, interest, and cost, that he would not have further instructed the jury, if called for by the evidence, and so requested, that this liability, however, might be limited, by proof by the defendants that only a less amount could, in' fact, have been realized by the levy.

For the error of the court in overruling the motion to quash the service of the citation, or notice of the motion, the judgment is reversed,- and the motion is remanded to the District Court.

Reversed and remanded.