Casey v. Douglass

16 S.W. 172, 4 Willson 195

• Court: Court of Appeals of Texas
• Decided: June 16, 1890
• Docket: No. 6269
• Status: Published

Opinion

Opinion by

Will-son, J.

June 16, 1890.

§ 135. Pleading; petition held sufficient to show liability of sheriff for neglect to. execute process. Appellants alleged in their petition, in substance, that they sued one Kinsey, and had certain property of said Kinsey attached, obtained judgment against said Kinsey for their debt, with a foreclosure of the attachment lien upon the property attached; that an order of sale was issued upon said judgment, and placed in the hands of Q. T. Douglass, sheriff, in whose custody was said attached property; that said sheriff failed to execute said order of sale, but negligently permitted said property to be wasted, etc.; that said property was of more than sufficient value to satisfy their judgment against Kinsey; that, by reason of the said failure and negligence of said sheriff, they had been unable to collect their said judgment, etc. The suit was against the sheriff and the sureties on his official bond. A special exception to the petition was sustained, and, the appellants declining to amend, the suit was dismissed. Said special exception is that the petition does not aver that the property attached was in fact the property of Kinsey, and subject to said attachment. We are of opinion that the said averment was not necessary, and that the petition is sufficient. It is alleged in the petition that the property had been attached as the property of Kinsey; that the attachment lien had been foreclosed upon it as Kinsey’s property, by a court of competent jurisdiction; and that an order for the sale of said property had issued from said court. These allegations show conclusively that the property was Kinsey’s, and subject to attachment..

Reversed and remanded.