Cases argued and decided in the Supreme Court of Texas, during the latter part of the Tyler term, 1874, and the first part of the Galveston term, 1875. Volume 42. Page: 218
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218 MCCLANE V. ROGERS. [Term of
Opinion of the Court.
MOORE, J. The appointment of a speciall sheriff," to execute
all process in the case, was certainly improper and unauthorized.
By Section 21st, of Article 5th, of the Constitution,
it is provided that the duties of the sheriff in all cases,
where such duties had previously devolved upon the coroner,
should in future be performed by a constable. The execution
of all process, of whatever nature the same might be, in all
cases whenever the sheriff was a party, had theretofore unquestionably
devolved upon the coroner. (Paschal's Digest,
There being no color of law for the appointment of a "spe"
cial sheriff," it follows that service of process by him was
invalid, and without warrant of law. If, therefore, the citation
upon appellant was in fact served in this way, there was
error in the refusal of the court to quash it. But although it
may be inferred that the citation was served by the party
appointed by the court, to execute all process in the case, it
does not directly so appear from the record. It has been too
often said by the court to require repetition, that tile party
complaining of the action of the court below, must plainly
show in the record, the error of which he complains. A judginent
will not be reversed unless error is clearly and distinctly
shown. It, is not sufficient that the court probably erred in the
matter complained of.
When money comes into the sheriff's hands. while he holds
a valid execution against the party to whom it belongs, he may,
no doubt, apply it in satisfaction of such execution. The mere
lodging an execution with the sheriff gives the plaintiff in exeeution
no preference, or lien upon personal property, or right
to closes in action of the defendant in execution. No arrangement
or understanding can be made between the plaintiff in
execution and the sheriff, in anticipation of money coming into
his hands, under an execution which he holds in favor of the
debtor against another party by which such application can be
made in advance of the receipt of the money by the sheriff;
or any preference in favor of the plaintiff in execution be made
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Texas. Supreme Court. Cases argued and decided in the Supreme Court of Texas, during the latter part of the Tyler term, 1874, and the first part of the Galveston term, 1875. Volume 42., book, 1881; St. Louis, Mo.. (texashistory.unt.edu/ark:/67531/metapth28531/m1/226/: accessed May 29, 2017), University of North Texas Libraries, The Portal to Texas History, texashistory.unt.edu; .