Oliphant v. Dallas , 15 Tex. 138 ( 1855 )

Hemphill, Ch. J.

The errors assigned are,

1st. The refusal of the motion to quash the service and citation.

2d. The action was premature, the note not being due at commencement of suit.

The Sheriff of the county was the plaintiff, and the writ was addressed to the Coroner, and the substance of the objection to the writ is, that it was addressed to and served by the Coroner, there being no affidavit, nor even allegation in the petition, that the Sheriff.was a party to the action.

The necessity of such affidavit or allegation is supposed to be apparent from the provisions of the 185th and 186th Arts, of the Digest. The first of these enjoins it as a duty upon the Coroner, to execute and return all process, where the Sheriff is a party, or where just exceptions can be taken to the Sheriff or his deputies, or where there is no Sheriff.

The second requires the Clerk to direct process to the Coroner in all cases where affidavit is filed of the partiality, prejudice, consanguinity or affinity of the Sheriff.

Under these provisions, there is a distinction between cases in which the Sheriff is a party, or where there is no Sheriff, and cases in which he is incompetent from partialities or affinities. The fact that he is Sheriff, or that there is no Sheriff, is presumed to be known to the Clerk, and no proof of such fact is required or directed, but his prejudices and affiinities may not be known, and information of such facts is to be conveyed to the Clerk by affidavit. In the former case, the Clerk may act on his own knowledge ; but in the latter, on proof from others.

There was no error, then, in the Clerk directing the process to the Coroner, (the Sheriff being a party to the suit,) although there was no affidavit that such party was the Sheriff of the county.

Nor was there any error for want of an averment in the petition, that the plaintiff held the office of Sheriff. The Statutes nowhere require such averment as prerequisite to authority in the Clerk to direct process to a Coroner or Constable. This would doubtless be the better practice, but the omission is not fatal, and may, if required, be supplied by amendment,, as was done in the case under review.

The conclusion is, that there was no error in refusing to quash the citation or service, and the judgment cannot upon that ground, be disturbed.

Nor was the action premature, as supposed in the second assignment. The suit was brought on the day after the maturity of the note, and days of grace are by Statute not allowed except on contract between merchant and merchant, their factors and agents. (Art. 2533, Hart. Dig.)

The judgment is ordered to be affirmed.

Judgment affirmed.