Patton Wellborne v. Collier , 13 Tex. Civ. App. 544 ( 1896 )

The sale by the constable under the order of sale in his hands was not void. It served to pass the title to the purchasers at that sale, because when he sold he had actual possession of the property and delivered it to the purchasers. If he failed to properly advertise the sale of the property as required by statute, he became laible to a penalty, and he and his sureties on his official bond were also liable for such other damages as the defendant in execution sustained by reason of such failure. Rev. Stats. (1895), art. 2379 [2319]. But his sale was not void, and consequently there was no conversion of the property sold and delivered by the constable under the valid writ or order of sale in his possession.

We are of opinion that the rule would not be the same as to the liability of the plaintiffs in the writ. They would not be liable for the statutory penalty, for that is denounce against the officer as a punishment purely for failure to do his duty. Nor would they be liable for damages occasioned to defendant in execution by reason of a failure to levy or advertise the sale as required by the statute, as their judgment and order of sale were valid and properly issued, and they are not liable for the manner in which the writ was executed, unless it were shown that they directed it so to be executed and participated in the wrongful execution thereof.

But the plaintiff here does not conplain of any loss occasioned by failing to levy or failing to advertise the sale as required by law, but only that the sale was void. We think that the failure to levy an order of sale, if required at all, is only an irregularity which does not render the sale void; and as it is not contended that any loss occurred on account of the goods selling for less than their value, by reason of the failure to make a formal levy, we cannot see upon what ground plaintiff is entitled to complain against anybody. Hastings v. Morris,70 Tex. 29; 2 Freeman on Executions, sec. 274; Freeman on Void Judicial Sales, sec. 26.

The record here shows that the plaintiffs recovered judgment in the County Court for nearly $300, including costs, and that in said judgment a lien was foreclosed on the furniture and goods described in appellee's petition and alleged to have been seized and converted by appellants; that an order of sale describing the goods as set out in the judgment and decree of foreclosure was duly issued and placed in the hands of the constable of the precinct; that he immediately went to appellee and told her that he had an order of sale all her hotel furniture, that it would be better for her to hold same until the sale, and that he had advertised it all for sale in ten days, and that he left it in her possession. On the sale day he went into her hotel and went to each room and sold the furniture and goods therein contained to the highest bidder. She did not object to the sale, but unlocked the doors of the rooms for the officer and bidders, and bid in several sets of furniture and articles of bedding herself, thus recognizing the sale as being valid; and, after completing his auction of the furniture and goods described in his order of sale, the goods were delivered to the purchasers, the appellee, apparently, willingly yielding possession of the property.

We are therefore of opinion that the court erred in its charges to the jury in defining what was necessary to constitute a valid levy, as, in this case as plead, a levy was unnecessary, and no case is made against appellants for the misprisions of the officer in executing the order of sale.

We cannot agree with appellee in her contention that appellants cannot avail themselves of this error for the reason that the judgment of the County Court upon which the order of sale was issued was void. The county judge who rendered it was a brother-in-law to Mr. Ofiel, one of the attorneys for plaintiffs in that suit. The plaintiff offered no evidence to prove that Ofiel was a party in interest in said suit, either in the subject matter or in the result, but relied on the recitals in the petition and the judgment to prove the fact of such interest. The petition contained the following allegation: "That the plaintiffs (Patton Wellborne) have been compelled to employ Boyd Ofiel, attorneys-at-law, to bring suit for their collection, and have agreed to pay them the amount of money mentioned in said notes as attorney's (fees) for their services."

The judgment as originally entered contained the recital that plaintiffs had agreed to pay Boyd Ofiel, "the said 10 per cent specified in said notes." This recital was upon motion stricken out of the judgment as being untrue, and having been placed there by mistake.

The question of the disqualification of the judge on account of relationship was considered by our Supreme Court in Winston v. Masterson, 27 S.W. Rep., 768. It is held, in effect, in that case, that the attorney whose relationship to the judge would disqualify the latter must be a party to the suit in the technical sense of the term "party." The majority of this court, including the writer, are of opinion that this interpretation is too restrictive (see Howell v. Budd, 27 Pac. Rep., 747); but constrained by the authority of the decision, they hold, with the remaining member, that the attorney Ofiel was not a party to the suit within the meaning of the Constitution (art. 5, sec. 11), or of the statute (art. 1129, New Revised Statutes), and that the judgment in question is not void.

These views, we think, render it unnecessary to notice other assignments of error.

We therefore reverse the judgment herein and remand the cause for a new trial.

Reversed and remanded.