Wright v. McKenney

34 Tex. 568

Opinion

Walker, J.

This is a proceeding against a sheriff for not returning execution according to law.

The law requires notice of the motion to .be served upon the sheriff at least three days before the motion can be made. This record does show that some sort of notice was served upon the defendants, but it does not appear whether it was notice of the motion or the motion itself.

The motion takes the place of the petition in this class of cases. The proceeding is summary and quasi criminal, and a strict compliance with the law should be required. The motion would be bad on demurrer; it does not sufficiently set forth the liability of the securities on the sheriff’s bond. Conclusions of law are not to be plead, but the facts from which such conclusions may or may not be derived. The' bond should be Set out, or at least so much of it as will enable the court to determine whether the sureties are liable upon it or not. The liability of sureties is strict matter of law, to be determined by the nature of their undertaking. In this case the court had nothing before it from which this question could be legally determined. The judgment is reversed and the cause remanded.

Reversed and remanded.