McClane v. Rogers , 42 Tex. 214 ( 1874 )

Moore, J.

The appointment of a “ special sheriff,” to execute all process in the case, was certainly improper and unauthorized. By Section 21st, of Article 5th, of the Constitution, it is provided that the duties of the sheriff in all cases, where such duties had previously devolved upon the coroner, should in future be performed by a constable. The execution of all process, of whatever nature the same might be, in all cases whenever the sheriff was a party, had theretofore unquestionably devolved upon the coroner. (Paschal’s Digest, Art. 1014.)

There being no color of law for the appointment of a “ spe- “ cial sheriff,” it follows that service of process by him was invalid, and without warrant of law. If, therefore, the citation upon appellant was in fact served in this way, there was error in the refusal of the court to quash it. But although it may be inferred that the citation was served by the party appointed by the court, to execute all process in the case, it does not directly so appear from the record. It has been too often said by the court to require repetition, that the party complaining of the action of the court below, must plainly show in the record, the error of which he complains. A judgment will not be reversed unless error is clearly and distinctly shown. It is not sufficient that the court probably erred in the matter complained of.

When money comes into the sheriff’s hands, while he holds a valid execution against the party to whom it belongs, he may, no doubt, apply it in satisfaction of such execution. The mere lodging an execution with the sheriff gives the plaintiff in execution no preference, or lien upon personal property, or right to dioses in action of the defendant in execution. Ho arrangement or understanding can be made between the plaintiff in execution and the sheriff, in anticipation of money coming into his hands, under an execution which he holds in favor of the debtor against another party by which such application can be made in advance of the receipt of the money by the sheriff; or any preference in favor of the plaintiff in execution be made to attach to it. The judgment in favor of such debtor is subject to his control, and he may deal with, and dispose of it in any legitimate way, and for any lawful or proper purpose to which he may see fit to apply it, so long as it is in fieri, unless some one has invoked the aid of judicial process to stay or prevent it. If his creditors are entitled and desire to do so, they may, of course, by a proper proceeding for this purpose, previous to its collection or appropriation by the debtor, have the money, to which he is entitled under the judgment, applied to the payment of their debts. But unquestionably this cannot be done by merely placing an execution in the hands of the sheriff in anticipation of-his collection of money under a judgment in favor of the debtor against another party.

As the debtor may legitimately give preference to one creditor over another, the plaintiff in execution would have no ground of complaint by reason of a bona fide appropriation of the judgment by his debtor, in payment of some other valid demand against him. If there was a valid and bona fide transfer and assignment of the judgment, and notice thereof given the sheriff, before its collection, and without the necessary steps having been taken to give a preference to any other party, the. money, when collected, would belong, not to the plaintiff in the judgment, but to his assignee. And the sheriff, under such circumstances, could not appropriate it to the satisfaction of executions in his hands against the assignor. If the sheriff applied the money so collected to other executions, and it passed from his control, or the rights of other creditors had in any way attached before receiving notice of the assignment, he could not be held to account for it by such assignee. But if, after notice of the assignment, the sheriff voluntarily, and at his own instance, ignores the rights of the assignee of the judgment, and pays the money collected to other parties merely because executions in their favor against the plaintiff in such judgment are lodged in his hands, he does this at the peril of having to account to the assignee of the judgment, unless he can show that the claim of the assignee is unfounded,, or that the parties to whom he has paid it has the superior and better right to it.

The fact of the sheriff’s having returned the executions in favor of creditors as satisfied by the application of money so collected, is of no consequence. The assignee’s claim to it depends upon mattes antecedent to such returns. Whatever may be the consequence and effect of such returns as between the sheriff and the plaintiffs in these executions, the assignee of the judgment, if notice of the assignment is given previous to the receipt of the money by the sheriff, is certainly neither bound or affected by them.

The fourth instruction given the jury, at the instance of appellee, is no doubt subject to objection as a charge by the court upon the weight of evidence. And if there was any reason to suppose the jury might have reached any other conclusion than that which they did, if this instruction had been refused, the judgment should be reversed. It is unquestionably improper for the court to instruct the jury that the evidence does or does not establish any particular fact or proposition in the case. However plain and manifest the evidence in it may be, the jury should be left to ascertain and determine it for themselves, uninfluenced by the opinion of the court.. Still, if no other conclusion can be legitimately deduced from the facts, than that stated by the court, the charge would be immaterial and could work no injury, and would therefore afford no ground for the reversal of the judgment. This, in our opinion, is the fact in this case, and although the instruction asked was improper, no injury to appellants has or could have resulted from it, and therefore the judgment should not be reversed for the error of the court in giving it.

There being no error apparent in the record, as presented to us, for which the judgment should be reversed, it is affirmed.

Affirmed.