Pitts v. Burgess

2 Wilson 614

• Court: Court of Appeals of Texas
• Decided: May 13, 1885
• Docket: No. 3485
• Status: Published

Opinion

Opinion by

Hurt, J.

■§ 700. Trial of right of property; party to writ not entitled to; case stated. Burgess & Neai obtained a judgment against Larkin Pitts et at., and caused an execution to be issued thereon and levied upon certain cattle. Pitts claimed the cattle under the statute for the trial of the right of property. The claimant’s oath and bond were returned to the county court and the cause docketed in said court. Burgess & Neal moved to dismiss the proceeding upon the ground that Pitts was a defendant in the execution which had been levied upon the cattle, and was not entitled to the remedy provided by the statute for the trial of the right of property. This motion was sustained. Held, there is no error in the ■judgment dismissing the proceeding. A party to the writ levied cannot avail himself of the remedy provided by this statute. The object of the statute is to furnish third parties — strangers to the writ — a speedy remedy in case their property is seized for the debt of another, or is taken as the property of another. It furnishes no remedy to a party to the writ. [R. S. art. 4822.] The fact that the sheriff accepted the oath and bond of the claimant, and returned the same to the proper court, did not cpnfer upon the claimant a remedy which was denied him by the plain intent of the statute.

Affirmed.