de la Garza v. Booth

Citations

• 28 Tex. 478

Syllabus

<p>The remedy by motion against a sheriff and his sureties, authorized by the 10th section of the act about executions, for the failure or refusal of the officer to pay over money collected on execution, is not cognizable in any other court than that from which the execution issued. (Paschal’s Dig., Art. 3781, Note 872, and Note 533, p. 347.)</p> <p>The statutory remedy by motion, however, is cumulative only, and not exclusive ; the sheriff and his sureties are liable to suit on their bond in the district court of the county of their residence for a breach of the conditions of the bond by his failure to pay over money collected on execution issued to him by the court of another county. (Paschal’s Dig., Art. 1423, Note 533.)</p> <p>In an action on a sheriff’s bond, for failure of the sheriff to pay over money collected by him on execution, the defendants cannot be made liable for the ten per cent, damages per month recoverable by a motion instituted under the statute above referred to; and an exception to so much of a petition on a sheriff’s bond as claimed such damages should'have been sustained.</p> <p>It has been repeatedly ruled by this court, that being penal in its character, the statute which provides the summary remedy by motion against a sheriff and his sureties, for his failure to pay over money collected on execution, is not entitled to any latitude of construction. That statute creates the liability for the heavy damages imposed, and itself designates the tribunal and the mode in which it shall be enforced. That liability, therefore, is enforceable in no other tribunal nor mode of proceeding than that designated by the statute. (Paschal’s Dig., Art. 3781, Note 872.)</p> <p>When a party entitled to money collected by a sheriff on execution elects to pursue his common-law remedy on the sheriff’s bond, the measure of his damages is the amount of money collected and not paid over, with interest from the time its payment was demanded. (Paschal’s Dig., Note 540