Schiffer v. Fort

Quinan, J. To the assignments we respond: 1. The permission to amend the return of the sheriff on the execution was not a matter of right. It is within the discretion of the court, and subject to its direction. But it should only be granted in furtherance of justice. And this discretion cannot be properly exercised without a full knowledge of all the facts. Freeman on Executions, 358, 360. In the absence of a statement of the facts we cannot assume that the judge erred in the exercise of a sound discretion in refusing to permit the return to be amended. . 2. The court did not err in entertaining the motion to quash the return and levy. The injunction had that for its object, and was merely ancillary thereto. Its purpose was to suspend proceedings under the levy until the regularity and validity of it should be inquired into, and that, upon hearing of the proofs, the same might be vacated. The defendants were duly served with process therein. But if more formal notice of the motion to quash could have been [202] required, the objection to entertaining the motion came too late, for the judge certifies that, on the hearing of it, the parties, at the time, argued the motion and made no written exception for want of notice, and therefore he entertained it. The entry of the judgment seems to support the conclusion that the motion to quash was regularly made in the suit No. 978; but, whether so or not, it was a mere irregularity, at most, which could work no injury. The injunction and the motion to quash were, in effect, directed to the same end, and may properly be considered as part of the same proceedings. 3. We cannot say that the motion to quash was improperly sustained. There being no statement of the facts proved on the hearing, the presumption is that the action of the court was fully warranted by the testimony. Substantial causes were assigned for it in the motion. If in truth no valid levy had been made, or if the levy, as is alleged, hád been made oppressively upon $20,000 worth of property to satisfy a debt of $500 or $600, or upon property exempt from execution, we do not doubt that in this proceeding the levy could and ought to have been vacated. Bryan v. Bridge, 6 Tex., 137; Freeman on Ex., 361. 4. The fourth assignment, that the court erred in refusing to dissolve the injunction, may be true, but it is not now materia], for the court dismissed the petition. 5. The fifth assignment, that it was error to dismiss the petition and render judgment against the defendant for costs, is not well taken. In equity, costs are subject to the discretion of the court to award as the justice of the case may indicate; and as the levy was quashed, it would seem to be equity that the party who procured the levy, and occasioned this proceeding to set it aside, should pay the costs. The defendants cannot complain of the dismissal of the injunction suit against themselves. Anderson v. McKinney, 22 Tex., 654; Payne v. Benham, 16 Tex., 368; Cannon v. Hemphill, 7 Tex., 207; Lacoste v. Duffy, 49 Tex., 768. Upon the whole we can discover no error in the proceed [203] ings to the injury of the defendants, or which would require a reversal of the judgment nor any good to be attained thereby. The quashal of the levy and the return left the parties free to take out another execution. The lien of their judgment upon the land is not affected by it, and to send this case back for another trial because of errors, if such there be, which have worked no injury, would be a useless and profitless prolongation of litigation. [Opinion delivered May 10, 1880.] We conclude that the judgment should be affirmed. A WTT^TVrqD