64 Tex. 108 | Tex. | 1885
The amended petition, termed a trial amendment, set up the same cause of action relied on in the original petition, viz., the judgment obtained by Boyd against Anderson. That the one alleged that the judgment was in full force, and the other that it was dormant or had lost its lien, does not affect the
We have already held that under the laws in force when this judgment was obtained, a scire facias might be sued out on a judgment which, though not dormant, has lost its lien. Masterson v. Cundiff, 58 Tex., 472.
It was said in that case that the plaintiff is authorized to take any step known to the law to give full force and vitality to his judgment. The case before the court then, like the present, was that of a judgment not dormant by reason of the lapse of time, but which had lost its lien by a failure of the plaintiff to have executions issued in timely succession to each other. If the plaintiff can use any remedy calculated to secure the appropriate relief, he may resort to either a scire facias or an action of debt. It is not important, therefore, whether the present suit comes under the one denomination or the other.
The defendant pleaded that after the original judgment was obtained he paid it, by transferring to plaintiff certain claims against other parties, and that these were accepted in satisfaction of the judgment. The judge below found that these claims were turned over to the attorney of the plaintiff, and whilst they were received by him in payment of the judgment, this fact was unknown to the plaintiff. The latter’s information, as derived from the attorney, was that the claims were placed with him as collaterals, the proceeds of which when collected were to be applied to the satisfaction of the judgment. There is nothing in the record to show that Boyd authorized his attorney to receive the claims in payment of the judgment, or did any act to ratify his action in this respect.
As the attorney had no authority to receive these claims in settlement of the judgment, his action was not binding upon Boyd, and the only effect that could possibly be given to it was to require of Boyd due diligence in the collection of the claims, and the application of their proceeds towards diminishing the amount due upon the judgment. Portis v. Ennis, 27 Tex., 574; Wright v. Daily, 26 Tex., 730.
In respect to one note only he appears to have been neglectful in enforcing a collection. That was a partnership claim of E. P.
Had this note been the separate property of E. P. Anderson, Boyd might have been chargeable with the whole amount of it, if its collection was prevented by any want of diligence on his part. As it was a firm note the court below charged him with E. P. Anderson’s interest in it only, and credited that amount on the judgment. This was certainly as much as the defendant could claim, and the decision below is in this respect fully as favorable to him as the facts would justify.
The appellee does not complain of the judgment of the court upon this subject, and we are not therefore called upon to take it into consideration. There is no error in the judgment and it is affirmed.
Affirmed.
[Opinion delivered May 1, 1885.]