G. Seligson & Co. v. Staples , 1 White & W. 605 ( 1881 )

Opinion by

Watts, J.

§ 1070. Execution from justice's court of one county to another county; ivithout certificate of clerk is voidable, but not void; claimant in trial of right of property cannot take advantage of such omission. An execution was issued from a justice’s court of Galveston county to Guadalupe county, and levied upon property in the latter county. The execution was not accompanied by a certificate of the county clerk, as required by article 1633, Revised Statutes. The property levied on was claimed by appellee Amanda Staples, under the statute providing for the trial of the right of property, and upon the trial she raised the objection that the execution was void, and gave appellant no right to have the same executed. Held, the writ was irregular, but not void, by reason of the absence of the certificate. The statute says that the writ shall be accompanied by the certificate, but it does not declare that without the certificate it shall be void. The decisions of the supreme court upon very similar questions may be considered as settling this one. [Sydnor v. Roberts, 13 Tex. 598; Earle v. Thomas, 14 Tex. 591; Portis v. Parker, 22 Tex. 699.] And it is well settled that the writ, not being void, could not be attacked by the claimant in this proceeding. [Earle v. Thomas and Portis v. Parker, supra.]

§ 1071. Community property; crops raised on wife's land. Crops raised on land which is the separate property of the wife, although the expenses of raising the same are paid out of the wife’s separate money, are nevertheless community property, and subject to the debts of the husband. [De Blane v. Lynch, 23 Tex. 25.]

§ 1072. Exempt property; cotton in lieu of year's provisions. The statute exempts from forced sale “ all provisions and forage on hand for home consumption.” [R. S. 2335.] It does not provide that in the absence of such exempt property the debtor shall be entitled to claim other property in lieu thereof. It will not bear such a construction. Cotton is not included in either the term “provisions” or “forage,” and is not exempt from forced sale.

June 1, 1881.

Reversed and rendered.