As presented by the record, there are but two questions in this case, being those raised by the special pleas of the" defendant.
1st. Is the judgment in the original suit of Hill and Christian v. Richardson and Riddle void, being against two only of three defendants ?
Under our statute, the plaintiffs in that suit had the right to discontinue as to the defendant Rodgers, who was not served with citation, and proceed against those served; and the mere silence of the record to show that this was done could not be taken advantage of in this collateral proceeding. (Paschal’s Dig., art. 1448.)
2d. Would the issuance of an execution on a dormant judgment be such an irregularity as would, of itself, render invalid, on a collateral attack by a stranger to the judgment, the purchase made at the sheriff’s sale by an attorney for the judgment creditor ?
That it would not, was virtually decided by this court in Boggess v. Howard, 40 Tex., 153.
It is there said, that “ if the judgment was dormant, however, when the execution issued under which appellees claim, while it would follow that Ray, who seems to have had control of it, got by his purchase merely a defeasible title, which might have been set aside or avoided by a proper proceeding by the defendant in execution, we do mot think objection to the execution, or to the title of the purchaser under it, can be raised by a stranger to the judgment in a collateral way.” (Id., 157; Ereem. on Ex., sec. 29.)
We do not say, had E. P. Riddle purchased the land in good faith and for a valuable consideration when the judgment was dormant and the lien lost, but what his title would be superior to that of the plaintiff", and that this could have been shown *151hi the present suit; but this is not.the ease presented by the record.
[Opinion delivered November 7, 1879.]In the statement of facts there is evidence tending to prove that the defendant Riddle purchased the land when the judgment was dormant, and prior to the issuance of the execution; but the testimony on this point is wholly unsatisfactory, as the deed is not made a part of the record, and it does not appear that he was a purchaser for value. This defect was attempted to be remedied by certiorari to perfect the record, and that which purports to be a certified copy of his deed has been sent up, but it does not appear from the statement of facts that the deed was in evidence below, and hence we cannot consider it.
Judgment affirmed.
Affirmed.