Dahoney v. Allison & Moore
Texas Commission of Appeals
Appeal from Lamar. Tried below before the Hon. E. E. Gaines. January 8, 1875, in justice precinct Ho. 1, in Lamar county (having jurisdiction), Allison & Moore brought suit against H. II. Dahoney and P. M. Spears, who was a constable, and his sureties, Jas. O. Walker and P. M. Price. The defendants recovered judgment, August, 1875, in the justice’s court.
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Appeal from Lamar. Tried below before the Hon. E. E. Gaines. January 8, 1875, in justice precinct Ho. 1, in Lamar county (having jurisdiction), Allison & Moore brought suit against H. II. Dahoney and P. M. Spears, who was a constable, and his sureties, Jas. O. Walker and P. M. Price. The defendants recovered judgment, August, 1875, in the justice’s court. The case was appealed to the district court, and there filed October 20, 1875. May, 1877, the cause was tried, resulting in judgment for plaintiffs against Dahoney, the other defendants recovering judgment and costs. In the transcript what…
1Opinion of the CourtA. S. Walker, J.
The demurrer puts in question the right of plaintiffs to satisfaction of their judgment out of the. excess of moneys received by the trustee on his sale under ;the prior lien, and whether defendant is shown to be liable in the action. . '
The right to levy an execution or attachment upon mortgaged property is recognized by our courts. Gillian v. Henderson, 12 Tex., 47; Wooten v. Wheeler, 22 Tex., 338; Belt v. Raguet, 27 Tex., 482; Sayles’ Treat., § 566.
The levy was made subject to the prior incumbrance by the trust deed, and did not in fact prevent the sale by the trustee. ■
Upon the sale, the…
2Cases cited7 opinions
- Olcott v. BynumSupreme Court of the United States · 1873
- Denison v. LeagueTexas Supreme Court · 1856
- Belt v. RaguetTexas Supreme Court · 1864
- Wootton v. WheelerTexas Supreme Court · 1858
- Gillian v. HendersonTexas Supreme Court · 1854
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