Haley v. Moses Greenwood & Co.

Citations

• 28 Tex. 680

Syllabus

<p>A \plaintiff in execution moved for judgment against a sheriff and his sureties on account of the failure of the sheriff to return the\ execution; but in this original motion the plaintiff did not designate the sureties by name. (Pasbhal’s Dig., Arts. 2502, 3796,5103, 5106.) At a subsequent time, the plaintiff filed a second or amended motion for judgment against the sheriff and Ms sureties, on account of the failure of the sheriff to pay over money collected on the execution; and in this motion the names of six persons were designated as the sureties. (Paschal’s Dig., Art. 3796, Note 884.) The citations, on which judgment by default appears to have been rendered, commanded the officer to summon four out of the six persons so named in the second or amended motion as sureties, but made no mention of the other two. The returns of the officer who served the citations state a delivery to each of the 'defendants of a copy of the “original petition” or motion, which, as before stated, did not designate who the sureties were: Held, that the service was defective, as it does not show or import that the sureties served and prosecuted to judgment were sufficiently notified as to who were the defendants to the motion; and that this defect is available in this court on writ of error to the judgment entered by default. (Cook v. Crawford, 1 Tex., 9; Frosh v. Schlumpf, 2 Tex., 422; Burleson v. Henderson, 4 Tex., 49, cited by the court; Paschal’s Dig., Art. 1431, Note 543.)</p> <p>The notice to a sheriff and Ms sureties, in a summary proceeding under the 10th and 23d sections of the execution law, may be served under the 96th section of the act to regulate proceedings in the district court, either by an' officer or a private person, who makes affidavit of the Service. (Paschal’s Dig., Art. 1463, note 561.)</p> <p>To make the sureties of a sheriff liable for money collected by him, he must have received the money before he was required by law to return the execution, and it devol