Maddox v. Tierney

3 Willson 469

• Court: Court of Appeals of Texas
• Decided: November 28, 1888
• Docket: No. 2874
• Status: Published

Opinion

Opinion by

Hurt, J.

§ 396. Liability of officer for sale of personal property under order of sede; order of sale does not protect, ivhen; case stated. Maddox, plaintiff in error, as sheriff of Tarrant county, under a valid order of sale' issued from the district court of said county in the case of Creswell v. Turner, seized and sold certain horses described in said order of sale, and upon which a chattel mortgage had in said suit been foreclosed. At the time of the seizure of said horses by said sheriff they belonged to and were in the possession of defendant in error. Defendant in error brought this suit to recover damages for the wrongful seizure and conversion of said property. Plaintiff in error pleaded, in justification, said order of sale. Judgment for defendant in error for $550 and costs. Held: Defendant in error not being the party against whose property the order of sale issued, and being the owner and in possession of the property described therein, the seizure of said property by the sheriff was illegal and wrongful, and not justified by said order of sale. An order of sale affords no greater protection to the officer than would an execution. [R. S. arts. 1340, 2292; Rhoades v. Patterson, 3 Cal. 469; Stimpson v. Reynolds, 14 Barbour, 586; Casperton v. Lott, 31 Hun (N. Y.), 349.]

November 28, 1888.

Affirmed.