Howeth v. Mills
Texas Supreme Court
Error from Henderson. Tried below before the Hon. John H. Reagan. Tandy Howeth, Sheriff, levied an execution in favor of Robert Mills and John W. Jockuseh against John P. Walton and another, on a lot of ground and storehouse, and stock of goods in the storehouse, in possession of Fletcher 0. Howeth. The property was pointed out by the attorney of the plaintiffs in execution.
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Error from Henderson. Tried below before the Hon. John H. Reagan. Tandy Howeth, Sheriff, levied an execution in favor of Robert Mills and John W. Jockuseh against John P. Walton and another, on a lot of ground and storehouse, and stock of goods in the storehouse, in possession of Fletcher 0. Howeth. The property was pointed out by the attorney of the plaintiffs in execution. F. C. Howeth brought this action against the Sheriff and the plaintiff in execution for damages for the trespass in making said levy ; and it appeared from the petition that the plaintiff had claimed the stock of goods…
1Opinion of the CourtWheeler, J.
It does not certainly appear by the averments in the petition, whether the injury complained of was occasioned by the levy upon the personal or real property of the plaintiff. As respects the former, the having resorted to the statutory remedy to try the right of property, was a waiver of the remedy by action. The plaintiff had elected his remedy, and must abide by it. As respects the latter, the petition does not allege a trespass or any act which amounted to a trespass. It is not averred that the Sheriff went upon the la^nd in making the levy ; nor that the defendants did any act injurious…
2Cited by6 opinions
- Morris Plan Bank of Fort Worth v. OgdenCourt of Appeals of Texas · 1940
- Walkley v. BostwickMichigan Supreme Court · 1882
- Houx v. ShawMissouri Court of Appeals · 1885
- Fox & Bro. v. Willis & Bro.Texas Supreme Court · 1883
- Harms v. StierAppellate Court of Illinois · 1894
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