Vaughan v. Warnell

Citations

• 28 Tex. 119

Syllabus

<p>A party cannot complain that the court refused to give the same instruction over again. (Paschal’s Dig., Art. 1464, Note 562.)</p> <p>To a motion under the 23d section of the execution law, against a sheriff and his sureties for failing to make return of an execution, the defendants answered, that, on account of the insolvency of the parties against whom the execution issued, the sheriff could not, by proper official diligence, have made the money on the execution at any time while it was in his hands. Held, that the court below, having in its first instruction properly informed the jury that the burden of proof on the issue raised by the answer lies on the defendants, it was not error to refuse a second instruction to the same effect asked by the plaintiff. (Paschal’s Dig., Art., 3795, Note 844.)</p> <p>It was error, however, for the court to refuse to instruct that the mere insolvency of the defendants in the execution was not sufficient to exonerate the sheriff and his sureties from liability on account of the failure to return the execution. Such a fact is not equivalent to proper official diligence, and a question of law should not be left to the jury. Id.</p> <p>It is the duty of the sheriff to return the execution, with his action on it, (Paschal's Dig., Art. 3796, Note 884,) which return is to be entered by the clerk in the execution docket, as a record. (Paschal’s Dig., Art. 3773, Note 866.)</p> <p>The defendants offered in evidence the sheriff’s return of “no property found” endorsed upon the execution; to which evidence the plaintiff objected, on the ground that the return was made by the sheriff after the filing of this motion against him and his sureties, and after the first day of the return term had passed. Held, that it was competent for the sheriff to make his official return on the execution after the return day had passed, and after a motion against the sheriff; and that such return was primo facie evidence in favor of himself and sureties on t