Lindsey v. Cope

On exception the court declined to entertain this motion. In this we think there was error. The allegations show that the facts did not justify a range levy, such as contemplated by the statute; that the stock were not running at large in a range, but that they were confined in pastures all under fence, the largest containing 1280 acres. The allegations negative the existence of the conditions which would justify a range levy as prescribed by article 2350, Revised Statutes. They negative the fact that the stock could "not be herded and penned without great inconvenience and expense." In fact, they indicate that the horses and cattle could be herded and penned without great inconvenience and expense. No reason is perceived, under the facts alleged by the plaintiff, why in this case the sheriff could not follow the method prescribed as ordinarily necessary to the validity of a levy upon personal property, viz: why he could not take possession and control of the stock, situated, as they were, in inclosures of moderate size. Gunter v. Cobb, 82 Tex. 603. *Page 464 The area of these pastures was so limited that it seems to us but little inconvenience or expense would have been necessitated in gathering the stock and taking care of them. Indeed, this slight inconvenience and expense would be greatly overbalanced by the injurious consequences which would attach were the provisions of article 2350, Revised Statutes, applied to a state of facts such as here presented. As the levy was an illegal levy, it was proper for the District Court to entertain a motion to quash it; and though the judgment was rendered upon affirmance by the appellate court, the District Court, to which the mandate of the appellate court had been addressed, was the proper tribunal to issue the execution. This execution, however, should not have included, as in this instance, the costs of $23.10 incurred in the appellate court (Bonner v. Wiggins, 54 Tex. 149); and as to these costs, but no further, the execution itself should have been quashed, as appellant prayed. Reversed and remanded.