Benningfield v. Kerr

WILLSON, C. J. (after stating the facts as above). The statute required freeholders to be appointed to hear evidence to determine whether the mule had trespassed on Johnson’s land as charged by him or not, and- “to ascertain [quoting] the damages, if any, occasioned thereby, and the fees due the taker-up of the stock py reason of said trespass.” Article 7251. The requirement was not complied with. The statute required, further, that notice thereof as in constables’ sales of personal property should be given before a sale of the mule was made by the officer. Articles 7252, 7253. It appears that this requirement also was not complied with; for, as noted in the statement above, the notice given was by posting at the courthouse door, at Jackson’s store, and at the Vandalia store; whereas, if the notice did not have to be published in a newspaper as provided in articles 6016y2 and 6016%a, Vernon’s Complete Statutes, it had to be given by .posting at the place where the sale was made and at the courthouse door and another public place in the county as provided in article 3761 of said statutes. Appellant insists, and we agree, that because of the failure to comply with the requirements of the law in the respects stated, the officer was without authority to sell the mule, and therefore that his act in attempting to sell it was void, and hence passed no title to the purchaser. The rule is (2 Sutherland on Statutory Construction, § 572) that— “When a right is given by statute and a specific remedy provided, or a new power and also the means of executing it are therein granted, the power can be executed and the right vindicated in no other way than that prescribed by the act.” And see Gest v. Dube (Tex. Civ. App.) 142 S. W. 965; 3 C. J. § 641, p. 185 et seq.; 1 R. C. L. § 91, p. 1149. Appellees’ argument in support of the judgment that the requirement of the statute that freeholders be appointed for the purposes stated above did not apply in the case, because it did not appear that Johnson claimed any other damages than the statutory fee (article 7251) of 25 cents a day for impounding the mule, is not tenable, for until it had been determined by such freeholders on evidence heard that the mule had trespassed on Johnson’s land as he charged it had, he was not entitled to said fee or any sum for impounding the animal. The judgment is reversed, and the cause is remanded to the court below for a new trial.