Texas State Gazette. (Austin, Tex.), Vol. 1, No. 3, Ed. 1, Saturday, September 8, 1849 Page: 4 of 8
eight pages : illus. ; page 28 x 42 in. Digitized from 35 mm. microfilm.View a full description of this newspaper.
Extracted Text
The following text was automatically extracted from the image on this page using optical character recognition software:
ywwiwuii'ffl i;)M j i issmssasxmataisss.
:Fvwiiifcara
5'fllffinw"-"fl-- tSVMV1 v ftMPVfVffA"
I
I
F
ks
Rf
Sat .. .- -
f
jP.PWffTT
TESM ME GMHEj'
:8
i. OlUfflUONS OF TIUB
lil'finmT 01? TOTAR
v- vy w juv . p. vy fc. .jl irt-if j h-t..!' v
Jfeliticral at the MBecember Tcvm-18&8.
' TTPT T?TVT
tfN'V J. O.VJ-..MJ--.
i !
THOMAS I SUEPPAUD Appellant vt AUGUSTE BAILIEU Appellee.
' Appeal from Washington.
t. Anexoctulon not pued out within a year from the rendition of jndgmen'
loeVlis lli. ....
3. A judgment on wlilrh no execution h?sibeen issued within the twelve
fsoh'lltf iuum lw rpVivr.: by scire facial
3. Ab!p&il wed ui hut not ini?ccutc(l vlll not operate to exrue n party
for neglcctfn'Hi nin out his exmulon within n year lifter ihe lime wlien by diu-diligence-iliefai'l
ol such a f.illuni to proeeute might h.ivi been nscer'nined.
Opinion df tho Court delivered by Mr'. JuMico Lipscomb.
The nclion was brought lo recover n crritiiti lot in the town of
Washington.' The plaintiff claims title by virtue of a purchase
at sheriff's solo ol the properly sued fur. The defendant claim
' by purchase from one of the defendants in execution prior to its
iastiaUeu. There was a verdict and judgment fpr the defendant
from' which (he pluiuliffoppealed.
It imnoara from the record that on tho 17th day of March
1840 in the District Court of Washington county Hood Shep
herd &. Co. obtained a judgment against I). JB Friar & Co. from
which an appeal was prayed and allowed and n paper purporting
toMjo on appeal bond was filed on tho 2()ih March 1840 in the
office of the clerk of the court. It is however alleged to be so
defective as not to be binding on any one. This bond wo- exe-
cuted by Hoiley one of tho firm of I). R. Friar & Co. and atio-
(Iter: person as his security. Tho appeal appears not to have been
prosecuted ; as on the 19ib ol June 1843 the Clerk of the Su-
premo Court certified that no such suit had been filed in his of-
fico up So that date; oud on the 30th of June the same year the
first execution was issued on the judgment obtained "in 1840.
This oxeeuiioii was levied on the lot in controversy and after
several other executions tho lot was sold. Tho most im
portent inquiry is as to lie validity of the first execution after
such a lapse of time and in the prosecution of this inquiry it will
be .necessary to examine our laws regulating executions. The
lJith section of ati act concerning executions passed on the oih
February 1940. provides "That whenever final judgment shall
bQjrotjdered by the Supreme District or- County Conns of this
Republic" ii shall operate as aiieu on all tho property ol the de-
fendant situate and being in tho same connti where judgment is
rendered from the day of the dale of the judgment; provided
that said lien shall cease to operate if execution bo not issued out
within twelve m ruths from tho date thereof and due diligence bo
not used lo collect the same." Acts 4th Congress p. 957
Tho lirt hart of the second-section of the Act of Limitation
passed the 5th of February 1841. provided that judgment in any
court of record within this Republic where execution hath not
isVued within twelve 'months after the rendition of judgment
may-bo revived by scire facias or action of debt brought thereon
Hyithiu ton y ars ilext after the dute of such judgment and hot
afjer." 5 Congress p. .161.
The above are believed to bo the statutory regulations in relation
to executions and it is manifest that according to the section first
cited tho execution not having been sued out within the year
from the rendition of tho judgment the lien ceased to operate.
And it will be seen by tho last section cited from the Law of Li-
mitation fhat if tho wxecution had not been issued withm twelve
months on the judgment that the plaintiff would bo required to
rcso'rf to a scire facias or an action on his judgment The con-
clusion is therefore that the execution under which the sale was
made to the plaintiff was void because it hud not been sued out
within a year front tho rendition of the' judgment unless the fact
of atj appeal should produce a different result. The act we have
citedseems to be imperative and without any conditions or qual-
ification that the lieu shall cease to operate if the execution is
not sued otit within twelve months from the date of the judg-
ment; and if literally taken would not admit of any excuse not
even if the party was restrained by an injunction from issuing
out his execution. It cannot be denied that the law-making pow-
er could if disposed to exercise such power. require that a judg-
ment should lose its lieu. if the plaintiff failed voluntoi y or in-
voluntarily to sjie out hiscxccution within the twelve months;
but we cmuot bejieyo that such was the design ' f the Legisla-
ture in the passage of tho acts cited. If .bond and security were
" given" by "tlm defendant hi the Judgment iiTdouble the a'mount'oT
the judgment ail appeal Was a matter of right- See 15th section
of the Act establishing the District Couit and defining its powers
and jurisdiction. Laws of Texas 1st vo. 203.. Tho appeal
when so 'taken and the security given suspended all proceedings
on tho judgment in tho court a quo tho appeal was taken. It is
said thpt the bond for tlm appeal was not in the terms of the law
that it was (i nullity and ought to have been so treated by the
plaintiffs in (he execution j as it has been presented to us it is
certainly informal and very defective ; the most prominent defect
is iu tho description of the judgment from which the appeal has
boon taken; ' This is however in the conditional part oud per-
haps was a good bond notwithstanding tho defects and a sub-
stantial compliance wilh tho law : at all events wo are not now
adjudicating its validity ; nhd the only possible bearing it can
have on the cifo boforo usls as phowui&lhe degree of diligence
used by the plaintiffs to keep iho lien operative. The clerk had
roceivedit und it was so much
to the" discretion of the cl
a matter ot course to grvo credit
v
I fi'ed iu due time." L. Kep T.JTnl I. p. 80. At the. return term
I .... ... . .. ' . ... ;.. . .:.. -....11 !.. lir.rl
Ol 1110 Supreme I OUrt IllO planum ill exuruiiuii wnnu ; "
iho appeal dismissed for a fuilure on the part of the appellants to
file the record ; or after the end of the term the appeal not be.
ing taken up the supersedeas would have been at an end. The
term of the Supremo Court next alter tlie appea' commenced m
January 1841 and ohded iu February. From this time the lo
gal impediment was removed and the plaintiff might have sued
out his execution ; but instead ol doing" so he remains inactive
for more than three vears from the rendition ol Ins judgment ana
more than two from the time when the supersedeas ceased to
operate and then he sues out his executbn. 1 put no stress
whatever on the certificate of the Clerk of the Supreme. Court
which it seems was obtained a few days before the issuance of
(he first execution. I know no law thai required the plaintiff in
the execution to wail for that description of evidence that the
appeal had not been prosecuted. If it had been neies-nry it
should have been on the adjournment ol ihe Court. But the
right to sue out the execution accrued on the adjournment of the
Court; ibis affoided full and complete evidence that the appeal
had been abandoned. The due diligence exacted by the law
would fix the limitation to within the year from the time the su-
persedeas was discharged. Moio than two years elapsed befoie
the issuance of the execution : this is not sufficient to keep tip
the lieu of the judgment. There is a great error in supposing
that the de'ay is only a question between the plaintiffs and the
defendants iu the execution. Oilier rights have intervened and
it is for the protection of such rights that the Legislature imposed
on the plaintiff iu a judgment the use of diligence if he wishes
to continue Ins lien. It was intended likewise to prevent colu-
sivo liens.
If we were to rule differently and to hold thai an appeal taken
and not prosecuted lit the will of ihe appellee the plaintiff in the
judgment and kept olive the judgment lien we won4d not he.
in) i1 m nx any iiniu wnatever. nv auoweu io retain ma nun
moio than twelvemonths from the time when the suspension was
removed without suing out his execution and using diligence to
collect tho judgment he might postpone it two three or an inde-
linito'tiumber of years.
The appellant's counsel is in an error when he supposes that
that the appellee showed no title. It appears from the recoid
lhat both parties claimed under Bailey and that appellee read his
deed to the jury. It is not however important that heshon.d
have shown title' in himself; il the execution was void as it is
believed to have been.it could give no title to the purchaser un-
der it. Ther is another point made in the appellant's bri f that
it may be well to notice. It is thai the. judge erred in submitting
the validity of the execution under which the appellant claimed
io the judgment of tho jury thereby declining to respond to a
question of law and leaving-it to be' decided by the jury The
record it is believed does not support the assignment and thai
the counsel hjis been mislead by taking the reasons assigned on a
motion for a new trial for the statement of facts. The bill of
exceptions does net show any such decisions by (he judge nor is
it any whereto beJbund but iu the motion for a new trial. This
motion was overruled because perhaps the judge had not given
such charge. Judgment affirmed.
WjiDB for Appellant Willie for Appellee.
dcrk that if no bond had actually been
given the not noticing that fact at tho time could hardly have
qeaiivj9it'u ou wio piaimju as a warn oi uiugenco. ve ijavu hi
tho case of Bennett and Wife vs. Gamble decided at tho first lerm
of "this 'Court given a construction to iho words "duo diligence
to collect llo sumo" used in tho concluding part of ihn 12th sec
tion first cited we construed it to. mean tho ue of all the nvans
the law afforded to tho party. Mow if the-npp 'al interposed an
impediment to the issnnncAnT execution it affords a sufficient
reason so mug as mai nupeaimciu continue; oui wnen u ceaseo
thatdiligcnco that tho plaintiff is required hi use would have in-
formed hi ti ottho fact that Jifs execution was no longer suspend-
ed and nt the sairio lima called on him to nco tho means the law
puJnij'.lq-hb hands. Wo will inquire if such diligenpo was used
lit tio caso under consideration ?
In tho Act to organize tho Supremo Court and define tho pow-
ers and jurisdiction thereof sec 7 provides In all cases taken
to tho Supreme Cohriin case the copy of the record iu the cause
holnw shall not bo filed with the Glorfc of iho Sunromo Court on
or before iho first duy of tho term to which such case was taken
or wiupmtye it shall bp lawful for tho Court oh ttintiou of tho
defendant In appeal hnd on produdlngn copyof tho cilntion duly
served on the deferidanf to dismiss 'tlm caused but the same tuny
fcawitrtatea t aK timjuwrhig (hQtttwif;
fy tbt sah!lWM i m court
WM. C- TOMPKINS' & CHA'S HARTSHORN Tor ihe me of SAM'L W.
UAKEY W.JOHN H. BEXNET. Administrator or WM. HALL.
Error from Galveston. .
1. The record of a discharge in b.inkruptey wih the proceeding (herein pro-
perly certified is admissible to eMnblish such discharge.
2. A partv who seeks lo impeach a disehaige for fraud or concealment must
allege and tpecify such frand.
Opinion of the Court deliveied by LirscoMB Justice.
This suit was hrohght lo recover a ba'ance of an open account
alleged to be due from the defendants intestate Hull to the firm
of Tompkins io Co. late merchants of the city of New Orleans
which account seems to have been ftom2nih March 1840 till
22d ftlay 1842. Tho suit was commenced in April 1S-15. and
tho answer filed at Ihe October term lb4o. The defendjmtrst
demurred 2d. denied all and singular the facts set forth in plain-
tiffs petition 3d a discharge under Ihe bankrupt law of the on-
gressofthe U. States of August 1841 by the decree of the District
Conn of the U. States for the district of Louisiana. The cause
was tried at the May term 1318 and verdict and judgment for the
defendant. All the evidence given on the trial and all that was
olfered; 'inVa're
statement of facts.
Tlie first point presented for our consideration !hy the plaintiffs
in error in Which it is supposed bv thorn that the court below err-
d is iu adm'ilfing the recoid of the discharge of Hall in hank-
rjiptcy under the plea.Tho evidence objected to' is an entire and
ifull record of the proceedings of the District Coitrt of the United
Slates for the district of Louisiana on the petition of Win Hall to
be declared a bankrupt. Every thingoppeors to'luWe been done in
strict accordance wilh tho requisitions of the bankrupt law. The
petition of Hall was filed February 9th 1843 and the decree of
the court woseiitcred on the Kith June following discharging the
petitioner from nil of his debts owing by him at the time of his pe-
ivfon to ho declared a bankrupt; and it Was furtherjnrdered that tie
Clerk duly pertify the decree under he seal of the court and de-
liver the same U the bankrupt whop demanded. The record then
shows all the finther proceedings required by the! lew for the dis:
position of the assets of the bankrupt by the assignee and it is-at'
the conclusion authenticated bv the following certificates lo wii ;
"Clertfs Office United States' District I
For the District of Louisiana.
I Needier R.!Jennings Clerk of the Court aforesaid do hereby
certify that the'foregoiug twenty pages contain a full and com
plete transcript of all'tho proceedings pleadings mid documents
on file and of recoid in the bankruptcy of Willialn Hull number
710 on the docket of the said court '
I further o.ertifv that the interlineations contained in pages G
1 1 12 15 19 and 20 are truojand exact copies of the interlinea-
tions iu the original papers aforesaid that they pre of tho same
number of words and are placed iu tlie same order as in iho said
originul papers?
In testimony whereof T haye hereunto ignod my name
L. & oud affiled tho seal of the said court at New Orleans this
fourth day of March A. D. 1848.
N. R. Ji;nntnos Clerk."
"J Theodore II. McCaleb Judgeof tho District CourtoftheXJ.
States for tho district of Louisiana do hereby certify thaj N. It.
Jennings who signed tho foregoing certificate was and is the
Clerk of the DlstrictiCourt of iheiU. States for the districtofLouisi-nna-Hhat
fahfeaiid credit! are duo and 'ought to be giveutln Hisat.
.testation 03iStjchf(Uiid that the above isiuidua form. As witness.
I do not understand from the record that the objection taken in
the court below to the adnnssibiliiy of the record went to the mode
of its authentication. But it -whs contended Ihai iho decree and
certificate as required by the act of CoiigreSs to make full proof
ol the discharge are not presented ill Ihe evidence offered. Tho
part of the aci relating to the degieeofcred nee thai shall bogiv
en to the discharge and certificate will he found iu the 4th section .
of the bankrupt law 5 Vol. Slat.' al Large 444 and is iu theso
words :
"And such discharge and certificate when duly granted shall '
in all courts of justice ho deemed a lull and complete discharge of
all debts contracts and other engagements of such bankrupt that
are provable under this act and shall and may I"' ph-ad d as a full
and complete bar to all suits hrouulu in any court o. judicature
whatever and the same shall be conclusive evidence of itself in
favor of such bankrupt unless tlie same ahull bv impeached for
some fraud onwilfnl concealment by him of his property or
rights of property as aforesaid contrary to the provisions of
this act on prior reasonable noticis si'KciFYirui in writing
SUCH FRAUD OK CONCKALMfcNT."
From the provision ol the act just citedM think there can bo"
no doubt that the deciee ol discharge attested by the cleric would
he conclusive evidence. 13ni to my miiid it is equally clear that-
the fact of the matierc and procci dins iu the ease In ing present-
ed between the decree of discharge and the clerk's certificate can
not impair the conclusive character of such certificate. Il is true
it Vould be more portable and convenient without having it con-
.uected wilh the balance ol the locord of the proceedings ; but at-
most ihe part absolutely required to be present) d would be only
surplusage. It must he borne iu mind that the law prescribes no
particular form in which the ceitificaie oflhe clerk shall be fram-
ed ; and this may be the usual foim of autheutlcMing the most
important fact to wit r that the court had deeieed ihe" discharge
agreeably to the piayer of the petitioner. The certificate present-;
ed applies to all the proceedings in Ihe poitieulai case und tho
decree being a pah of those procei dings is- i mbraccd. The-
Judge" certifies that the clerk's ci rlificale is iu due form. lean
entertain no doubt but the record showsfnlly and conclusively
the discharge of the defendlml's intestate as far as it 'whs competent
for the court lo decree a dlschaige. 1 have said that 1 did not un-
derstand Ihe objection went to ihe authentication ol ihe record ;
because if it wassoinlendid. il should have been moio explicit.
I am not to be understood however as expiessing any doubt aa
to the sufficiency of the ahtheniicaiiou. It is true thai il the evi-
dence hod been offered before the annexation of tins State to tho
United Stares. Ibc authentication would not have been sufficient
to authorize it to have been read iu evidence. See Phillips vs.
LVon I Vol. Tex. Rep. p. 392 ; Welborn vs. Cai r id. 4H9.J
' 1 will however relui n to the point made by the plaintiff's coun-
sel that a distinct certificate was- required. To notice one argu-
ment urged iu his brief he supposes ihnt "the dearee of the Judgo
might have been made just as it was n Lid yet the decree afterwaids.
attacked in llTe same court for fraud or because the bankrupt had
not complied with all the lawful orders of the court and the cer-
tificate consequently withheld and never delivered." Now such'
a presumption is repugnant lo both the law and the lccord ; after
the decree discharging the bankr pt the court has nothing nioro
to do with him. All the requisites from tho bankrupt hod been
complied with oad adjudicated befoie the decree at d iu Unit court
the time had passed for charging him wilh fraud. Again had
ihere been any proceedings directing tho decree of discharge to bo
suspended and consequently the certificate it would have been
shown by the record that was given in evidence. Bui to my read-
ing of the bankrupt law the court silting in bankruptcy had o
power or control over the certificate of the clerk a tor the decreo
declaring the petitioner a bankrupt and decreeing his discharge.
1 shall proceed lo consider the next objection taken by the
ploiniills in error that the court erred iu refusing the evidence
io impeacn me ciiscliaige oin he around o Intod. Tr 11 im
--.--- . l F 111 Ull
r hattrnf;ifgonlttniSQ buvshown1 my bond andsulfatZSpw Orleans this ifburiji: day of March; 'Aujed for a ne
Why copy of tli record was not ' D. 184S. Thko. HMcCaled'. Seal." "authorized
ige
seen by ihe .statement of facts that iho evidence offered bv tho
plaintiff and ruled out by ihe court was this : " The plaintiff of-"
lered to prove by a witness on the stand thai Hall owned real
estate in Galveston before the lime of bis discharge' in bankrupt-
cy as set up by the defendant and continued lo own and enjoy
the same subsequent to said discharge.'' If the object of the evi-'
deuce was lo prove fraud in obtaining; the discharge it would
not have conduced to that end if jt had been received becausoi
we cannot presume fraud it must bo proven actually or be a .
col i c1 nsforrfrw n Tfrct siharw il l"norad nfir ofo n y oflusTconchisibiiT""
consistently; with fair dealing. That he owned piopeity in Gab'
veston previous lo his discharge in bankruptcy was not a matter
of controversy and provid nothing because his schedule render-
ed and filed on his application to the court iu New Orltans show-
ed ihnt hedid own such properly ; and it was ineluded with his
assets in the hands of the assignee. 'I his was acknowledged
and needed not additional proof. The record read iu evidence '
showed that it had been sold for the benefit of his creditors oiid'
that it had been purchased by the parly who claims in this suit to
hold the equitable interest in the sum sued for. The evidenco
could not have proved fraud al the tiuiclhe certificate was ob-f
taiued because he had rendered in the Galveston properly iu his '
schedule'; and if he had afterwards set up a fraudulent claim'ior
the property such subsequent fraud could not affect hisdischarVreV
Again as this suit is brought by citizens of Lonisiaiia'on whatis!
alleged by them to be adebj due to them and the- proceedins in-
bankruptcy formed a judicial proceeding of their own forum I.
have no doubt that whatever rest rid ions may be. placed by courio
extra-territorial oii bankrupt laws that the parlies in iliis'snit"
were bound by the law. If so the discharge could only bo im-'
peached for fraud in the way- provided bv Iho law itself. This '
it has been shown by the citation from'the 4lh section of' tho"
bankrupt law is " onfaif reasonable notice specifying in writ-!
titff such concealments." If the plaintiffs had wished to impeach
ihe discharge on tho ground of fraud or concealment the fourida-J
am should have been laid by nllpgitisrniiiJ sppciiviVsuch frn'udv
This would have been noticoto the defendant. 'There' does nor
oprjear lo havo been but two points of law icserved for the conW-'
deration of this court. First the admission of iho record frorrV
tho District Court of the United States firthe District of'LouisiiP
no objected to by the plaintiffs and iho objection overruled by"
tho court; and I believe there Was no error in so ruliio Tho
second the refusal lo admit tho evidence offered by the plaintiff
in which 1 havo endeavored to show there was no error ' The"
evidence of the bankrupt's residonco-in Galveston his having
voted there and conducted himself as a citizen of (lie place went
to the jury without any instruction from tho court. If the plait
tiffs behoved it to be-of any consequence to tfioi rights thoy
should have asked the court" to have charged li in n'tLVAU
.applicable to such a state of (actSi Nlit htJvihir HmmWiirfPirM
if -the' state of fadts' proven wnnUPhaflfc
new trial even.
a different verdict it cannot now bo revised. But J
R
A
r O
Upcoming Pages
Here’s what’s next.
Search Inside
This issue can be searched. Note: Results may vary based on the legibility of text within the document.
Tools / Downloads
Get a copy of this page or view the extracted text.
Citing and Sharing
Basic information for referencing this web page. We also provide extended guidance on usage rights, references, copying or embedding.
Reference the current page of this Newspaper.
Matthewson, R. C. Texas State Gazette. (Austin, Tex.), Vol. 1, No. 3, Ed. 1, Saturday, September 8, 1849, newspaper, September 8, 1849; Austin, Texas. (https://texashistory.unt.edu/ark:/67531/metapth80894/m1/4/: accessed May 6, 2024), University of North Texas Libraries, The Portal to Texas History, https://texashistory.unt.edu; crediting The Dolph Briscoe Center for American History.