Garrity v. Thompson

Citations

• 67 Tex. 1
• 2 S.W. 750
• 1886 Tex. LEXIS 604

Syllabus

<p>1. Injunction—Delivery—Trial of Right of Property.—The c1aim ant of goods in a proceeding for trial of right of property, after filing his claim and bond, but before final judgment against him, transferred his interest in the property to a third party. After judgment the claimant purchased the- property from a purchaser thereof at tax sale, but it remained in the possession of his former vendee. The property was not (according to the finding of facts by the court) delivered by the claimant to the sheriff within ten days after the final judgment in the proceedings for trial of the right of property as required by statute. Afterwards the plaintiff levied and sold real estate of the claimant to satisfy his judgment, but before a sheriff’s deed was made or purchase money paid, this suit was brought to restrain the plaintiff from proceeding with the collection of his judgment, and against the sheriff and purchaser at sheriff’s sale, to enjoin payment of the money and the delivery of the deed, held:</p> <p>(1) A statement made by the attorney of the claimant to the deputy sheriff within ten days after final judgment that the attorney wanted to deliver the property which was replevied and which was in the possession of claimant’s vendee (the property being several hundred yards distant), was not, though assented to by the officer, a delivery of the goods. This held, in connection with the facts, that the officer went at once to consult the party in possession to have the goods checked off before receiving them; that he never found him; that he never obtained his authority to receive the goods in satisfaction of the judgment; that no order for the goods was given on the party in possession, and his consent that the officer should receive them was not shown.</p> <p>(2) The claimant was entitled to a levy on other property if the goods claimed were not of value sufficient to satisfy his judgment, and a failure to shew in the petition that the amount bid for the land was no