Garner v. Cutler

Citations

• 28 Tex. 175

Syllabus

<p>Objections to the admission of evidence are not available in this court unless they were made in the court below.</p> <p>A levy upon personal property is, as a general rule, held to be prima facie evidence of satisfaction of the execution. But this presumption does not arise when possession of the property remained with the defendant in execution ; and it is repelled whenever it is shown that the plaintiff has been prevented, either by the act of the defendant or the operation of law, from reaping the fruits of his levy. (Paschal’s Dig., Note 867, p. 620.)</p> <p>When two or more executions against a defendant come to the hands of a sheriff, he is required by law to number them in their order of precedence; and, in accordance with such orders, they are entitled to satisfaction out of the property of the defendant. In such case, it is of no importance under which execution a levy and sale are made; the first execution is entitled to ' the first satisfaction, although the levy and sale be made under a subsequent execution. (Paschal’s Dig., Art. 3780, Note 871.)</p> <p>If all the executions be levied on the defendant’s property, the sheriff, for the sake of greater accuracy, should show by his returns upon the subsequent executions that the levies made under them are subject to the priority of those having precedence of them; but a failure of the sheriff to make such showing could not affect the respective rights of the several plaintiffs in execution.</p> <p>A sheriff’s return of an execution is to be regarded as true and correct until the contrary is made to appear. (Paschal’s Dig., Art. 3773, Note 866.)</p> <p>The plaintiff sued upon a judgment, and, in support of his action, introduced as evidence a transcript of the judgment and subsequent proceedings, including an execution issued on the judgment, which was received by the sheriff as execution No. 2, and upon which he indorsed a levy upon real and personal property of the defendant in execution. By a subsequen