Hardy v. Gascoignes

COLLIER, C. J. The defendants in error having recovered a judgment' against Seaborn J. Sorrell, in the Circuit court of Dallas, caused a fieri facias to bé issued thereon, and levied upon sundry articles of merchandise in his possession. To the property thus levied on, John Hardy and John Sorrell interposed a claim according to the statute in such cases, and together with P. Walter Herbert, their co-plaintiff, entered into bond to try the right. On the trial of the right of property, the defendants in error offered in evidence, their execution on which the levy was made, to which the claimants objected, unless the judgment was first produced; but the court overruled the objection, and allowed the fi. fa., together with the return of the sheriff to be read to tha jury; whereupon the claimants excepted, &c. [452] The court charged the jury, that it was competent for them, if the evidence authorised it, to find the property claimed, subject to tile execution of the defendants, though they might not be able from the preof, to find the value of each article of property; to which charge, the claimants also excepted, &c. And the jury found the property liable to the satisfaction of the execution, without finding the value of each article separately; and thereupon a judgment was rendered, condemning the property to its satisfaction, and against the claimants and their surety for the costs. To revise which judgment, all of them now join in the prosecution of a writ of error to this court. In regard to the first question arising upon the bill of exceptions, it was determined in Carlton et. al. vs. King,* that in a trial of the right of property between a plaintiff in execution, and a third person, it docs not devolve upon the former to produce the judgment on which the execution issued — that between them, the production of the execution is sufficient. If the execution be admissible, we cannot conceive why the sheriff’s return should be excluded; for when made in •pursuance of law, it becomes matter of record, and as such, is clearly evidence. Besides, the legislature having made a copy qf the execution and sheriff’s return, evidence where a contest arises in a different county than that where the judgment is rendered, impliedly declare the admissibility of the original.!† The decision of the court on this point is, then, free from objection. It is true, that the statute of eighteen hundred and twenty-eight,‡ enjoins it upon the jury as .a duty in all cases, when they shall find the property subject to the execution, to find the value of each article separately. But to determine how this provision of the act shall he expounded, we must have a regard to the old law, — the mischief and the remedy. Now, by the old law, if pro [453] perty was condemned upon the trial of the right, and was not delivered to the sheriff, the bond was to have the force and effect of ■ a judgment, and on notice and motion, execution was to be awarded against the claimant and his sureties. The mischief was this:'though the property might not be worth one-tpnth of the amount of the execution, — or though every article but one, (and that of very little value)' was delivered to the sheriff’, yet the claimant and his surety were bound fo .satisfy the execution. The remedy proposed, was the prevention of such injustice, by adjusting the liability of the claimant and his surety, with a strict regard to the value of the property claimed, and not delivered. , The statute then, was for the boneiit of claimants and their sureties ; yet by the- repeal of the pre-existing law, its observance is made still more beneficial to the plaintiff in execution. ' For unless the jury affix a valuedp each article of property, upon a failure to make delivery to the sheriff, the plaintiff would not be allowed, on-motion, to obtain a judgment for the default; because it. would not appear by the judgment, how much he. should recover. And this proceeding, being exclusively prescribed by statute, which provides the mode of admeasuring the extent of the claimants liability, no other means of ascertaining this, would be allowable. . Thus it appears, that the plaiptifís in error have no right to complain, that the requisition of the statute was not complied with; for instead of injury, it places them in a more favorable condition. Had the value.been assessed, they would, have been compelled to make it good, but now they are only liable for costs on the . judgment against them. A verdict of condemnation, followed by a judgment, as in the present case, must be taken as conclusive against the right of the claimants, (and all claiming under them) and they would not be allowed to litigate the question of its liability, to the satisfaction of the execution, in any controversy afterwards arising. We have considered the verdict and judgment only [454] as they relate to the proceeding under the statute. If the property levied on, he not returned to the sheriff, in obedience to the undertaking of the claimants and their surety, it is competent for the plaintiffs in execution to sue an action at law upon the bond, and recover damages for the breach of the condition. We have no statute authorising the rendition of a judgment against a surety for costs, (in a case of this kind) directly upon the return of the verdict of the jury. And without the authority of a statute, there can be no pretence for maintaining the regularity of such a judgment. For the error in this particular, the judgment must be reversed, and rendered here against the proper parties. Footnotes [*] 1 Stew. & Por. 472. [†] Aik. Dig. 170. [‡] Aik.Dig. 169, 170.