Smothers v. Field, Thayer & Co.

Citations

• 65 Tex. 435
• 1886 Tex. LEXIS 685

Syllabus

<p>1. Motion against a sheriff and his sureties—Article 2326, Revised Statutes— What a prima facie case—How it may be made—How it may be rebutted— In order to sustain a motion against a sheriff and his sureties, under article 2326, Revised Statutes, the plaintiff must make out a case showing, prima facie, that the defendant in the writ which the sheriff has failed to levy, had property subject to execution. This prima facie ease may be made by showing a state of facts which ordinarily and without explanation furnishes satisfactory evidence of title, and does not show that the property is necessarily saved from forced sale, by virtue of the exemption laws ; and when made by the plaintiff, it devolves upon the sheriff, if he would defeat the motion, to disprove this evidence, or to introduce proof showing that the apparent liability of the property to execution is not in accordance with the true state of the ease.</p> <p>2. Same—Pleading — Petition — General denial—Special plea—In proceeding against a sheriff and his sureties, under art. 2326, Revised Statutes, it is sufficient if the plaintiff sets forth in his petition a state of facts, such as, if established, will shift the burden of proof upon the defendant in the motion ; and the latter must prepare his pleadings to correspond with the character of the proof to be used by him in meeting the prima facie case of the plaintiff. If the defendant proposes merely to disprove the facts alleged by the plaintiff, a general denial will serve his purpose; but if those facts are true, and he wishes to explain or avoid them, he must plead, specially, the matters of avoidance or explanation, upon which he relies.</p> <p>3. Execution—Existence of prior liens no excuse for failure to levy—Equity of redemption—The mere fact that there are prior liens upon the property of a defendant in execution is no justification for failure, on the part of the officer, to levy the writ. The defendant’s equity of redemption is subject to his d