
    No. XVII.
    Forbes, Brooks & Co. v. William G. Hill.
    (See .)
    
      Appeal from Brazoria County.
    
    
      
      .—Forbes, Brooks & Co. v. Hill, p. 486.
      Defendant in execution has the right to point out property to be levied on. Scott v. Allen, 1 T., 508; Cloud v. Smith, 1 T., 611; Bryan v. Bridge, 6 T., 137; Wilson v. Smith, 50 T., 365; Atchison v. Hutchison, 51 T., 223; Railway v. Wright, 88 T., 346; Jackson v. Browning, 1 App. C., sec. 606. Provision of statute requiring officer-to request defendant to point out property is directory, and failure to do so does not render sale void, in the absence of fraud. Pierson v. Flanagan, 52 T., 266; Odie v. Frost, 59 T., 684; Allen v. Pierson, 60 T., 604; Stone v. Day, 69 T., 13; Beck v. Avondino, 82 T., 314; Alexander v. Benner, 10 T. C. A., 111; Fatheree v. Williams, 13 T. C. A., 430; Ellis v. Harrison, 24 T. C. A., 20; Barbee v. Heflin, 1 App. C., sec. 744; McKennon v. McGown (T. Sup.), U. R. C., 1889. Only entitled to reasonable opportunity to point out, and officer is not required before making levy to seek defendant out of the county. Cook v. De la Garza, 13 T., 431; Sydnor v. Roberts, 13 T., 598; Kendricks v. Rice, 16 T., 254; Choate v. Redding, 18 T., 579; Atchison v. Hutchison, 51 T., 223, 233; Kingsland v. Harrell, 1 App. C., sec. 739. May be pointed out by agent of defendant. Cornelius v. Burford, 28 T., 202. By plaintiff or his agent when defendant fails to point out. Bryan v. Bridge, 6 T., 137; Kendrick v. Rice, 16 T., 254; Batte v. Chandler, 53 T., 613. By surety when his principal fails to do so. Martin v. Rice, 16 T., 157. Officer is not required to find personal property to levy on. Smith v. Frederick, 32 T., 256; Pierson v. Flanagan, 52 T., 266; Anderson v. Oldham, 82 T., 22; Ellis v. Harrison, 24 T. C. A., 20. Officer is not bound to levy on property pointed out by defendant when it does not belong to him or when it is exempt property. Ross v. Lister, 14 T., 469; Carey v. Tinsley, 22 T., 383; Garvin v. Hall, 83 T., 295. Validity of sale is not affected by return failing to show that defendant was called on to point out property, or who pointed it out, or that notice of sale was posted as required by law. Howard v. North, 5 T., 290; Sydnor v. Roberts, 13 T., 598; Crabtree v. Whiteselle, 65 T., 111.
    
   MORRIS, Justice.

An execution in favor of Forbes, Brooks & Co. for $839.50 was levied on certain slaves of Hill, who obtained an injunction thereto, alleging that he had “pointed out property” to the sheriff to make levy on; but that the sheriff, with the advice of the plaintiffs in execution, or some one of them, and with the intention of harassing and oppressing the said Hill, failed to levy on the property so designated and proceeded to levy on his slaves.

The answer of Brooks, one of the defendants in the injunction and a partner in the firm of Forbes, Brooks & Co., denies that he gave any instructions to the sheriff, except to levy on property to which Hill had a title, and that he does not believe any other instructions were given by the other partners, one whom has never resided in the Republic, nor had any management of the partnership affairs; and that the other partner is now absent from the country. The sheriff denies all oppressive action or intention on his part in the levy of the execution, and for further answer denies that Hill ever designated or offered to designate any lands belonging to himself to be levied on. The cause came on to be tried at the March term of the District Court for the county of Brazoria, and was submitted to the court; the injunction perpetuated; but “liberty granted (to use the words of the court) to the plaintiff in execution to sue out another execution, having due regard to the grounds upon which this injunction is perpetuated.” An appeal is taken to this court.

The fifth section of an act of the Fourth Congress, concerning executions, prescribes: “That all executions shall be made returnable to the next term of the court, and the defendant or his agent in all cases shall have the right to designate the property; and if the defendant shall fail or refuse to designate the same, then the levy shall be made on personal or movable property first; then on uncultivated lands; then on slaves,” etc. Under this section it is contended that it is not necessary for the defendant to point out his own property, and that the sheriff is bound to make the levy on “property designated ” whether the defendant have title or not; he (the sheriff) not being the proper person to inquire into the title of the defendant to property thus designated.

We can not believe that a statute should be construed so as to lead to the flagrant and palpable absurdity that an individual can point out the property of another to satisfy a debt of his own. Such a construction would be at war with the plainest dictates of common sense, as well as the usual and legal construction of statutes. True, the exercise of the discretion on the part of the sheriff, of refusing to levy on property pointed out by the defendant and to which he asserted a title, might in some instances be used for the purposes of oppression; but there the doors of the courts are always open to restrain, upon proper allegations, such illegal and inequitable proceedings; but in this instance the plaintiff in this bill does not even allege title to property pointed out, and the error originally existing in the granting of the injunction is rendered more glaring in its perpetuation. With regard to the suggestion of counsel that the injunction being perpetuated only as to the particular execution, leave being granted to the plaintiffs in execution to sue out another, no right of the said plaintiff was impaired and no cause existed for appeal, we can only say that the judgment of the court below was final, and the course to be pursued by the party who considered himself aggrieved by that judgment was not liable to the dictation of the court; but a matter of right on which he could exercise his own discretion, and pursue the remedy which the law afforded him by appeal to a higher tribunal. We are therefore of opinion that the judgment of the court below be totally reversed.

Reversed.

Chief Justice Hemphill and Judge John T. Mills

concur. Judges A. Hutchinson and B. E. B. Baylor say: “We concur in the above opinion, but feel it proper to go further and say that this was not a case for injunction. Each court of original jurisdiction has the necessary control over its final process and the action of its ministerial officer; but this is executed not by injunction but supersedeas, which brings back the process if irregular, or arrests the action of the officer if illegal or oppressive. Here there is no complaint against the judgment for injustice; and wherefore an injunction? The whole case is radically and throughout wrong.”  