Tillman v. McDonough

2 Wilson 45

• Court: Court of Appeals of Texas
• Decided: November 28, 1883
• Docket: No. 1488
• Status: Published

Opinion

Opinion by

Willson, J.

§ 52, Execution; when returnable. An execution is returnable to the first day of the next term of the court after its issuance, or in thirty, sixty or ninety days, if so directed by the plaintiff, his agent or attorney. [R. S. art. 2282.] If no return day is specified in the execution, it is returnable on the first day of the next term of the court from whence it issued.

§ 58. Same; is functus officio, when. After the return day the execution is functus officio, and not valid for the purpose of a levy. The officer attempting to further execute it is entirely without justification, and is liable for his acts precisely as he would be if he had. no writ in his possession. Except for the purpose of justifying the detention and sale of property previously levied upon, the writ is of no force, and does not even authorize the officer holding it to receive payment of it. [Freeman on Executions, § 106; Harris v. Ellis, 30 Tex. 4.]

November 28, 1883.

§ 54. Trial of right of property; claimant may plead that the process levied is void. In a trial of the right of property, the claimant, if the property was levied upon in his possession, may show that the process under which the levy was made was void, or was such as did not authorize a disturbance of his possession; and where the process is void it may be attacked after issue joined, at any stage of the trial. [Latham v. Selkirk, 11 Tex. 314; Webb v. Mallard, 27 Tex. 80.]

Affirmed.