CITIZENS STATE BANK OF CLARINDA, IOWA, v. DEL-TEX INV. CO. et al.
No. 10383.
Court of Civil Appeals of Texas. San Antonio.
Dec. 14, 1938.
Rehearing Denied Jan. 11, 1939.
We do not think the court erred in refusing to set aside and disregard the answer of the jury to the special issue relating to the mutual mistake, and the assignment must be overruled.
Other propositions are presented that the court should have disregarded the findings of the jury that Moore was without authority to release the debt sued on and that plaintiff did not subsequently ratify his acts in doing so.
It is claimed by Thomas that since Moore was acting as liquidating agent for plaintiff, he at least had the apparent authority to make settlement of the note sued on and to release it after payment. There would be merit in the contention if it was not shown by the uncontradicted proof that Thomas knew Moore could not release that debt. Moore‘s implied authority will not prevail over positive proof to the contrary.
Relating to ratification, the evidence presents an issue of fact. This was determined by the jury against Thomas. The issue as submitted may be said to have embraced a mixed question of law and fact, but no objection to it on this ground was presented, either before it was submitted nor in motion for new trial, and if there was error shown on this point it was waived.
When the release was prepared and executed the original was given to Thomas and a copy to Moore. The latter testified that when he received the copy he put it in his file and went to work on other matters, remaining in Wichita Falls a couple of days afterwards. He said before he signed it, he “glanced” at it and saw it recited the assignment to Mrs. Stringer was without recourse and did not read any further. That he had the utmost confidence in Mr. Humphrey, who wrote the instrument, and that Humphrey knew the agreement expressed in his presence, and that the principal debt was excepted. The witness said he thought nothing more about it. He thought Humphrey was representing him as well as Thomas. Witness said he carried the copy back to Dallas and placed it in the files. The officers of plaintiff had access to the files. He told Mason he had made a settlement of the matter as per his instructions and had the $3,600. He endorsed the check as liquidating agent and deposited it. He did not show the copy of assignment and release to anyone in the Dallas office. He said he was so sure the matter had been closed as they had agreed upon that he did not deem it necessary to explain it all to Mr. Mason, nor to thereafter go through the files and check up on what he had done. He had many other duties to perform which consumed his time and had no reason to believe he had made a mistake. The first time the witness ever knew that Thomas was claiming a release of the principal guaranty was after the letters were written to Thomas demanding payment and he had gone to Wichita Falls on January 24, 1937, to make the collection.
There is nothing to indicate that Mason or any other officer of plaintiff had actual knowledge of the contents of the release. Whether under the facts they were chargeable with constructive notice thereof was an issue of fact and this was found on substantial evidence against Thomas’ contention, and the trial court did not abuse his discretion in declining to disregard that part of the verdict.
We see not error in this record which would require a reversal of the court‘s judgment and it is therefore affirmed.
Carter & Stiernberg, of Harlingen, for appellees.
SMITH, Chief Justice.
Citizens State Bank of Clarinda, Iowa, appellant herein, brought this action in trespass to try title against Del-Tex Investment Company to recover title and possession of a tract of land situated in Hidalgo County. From an adverse judgment rendered upon a trial before the court without a jury, the Bank has appealed.
The record shows that both appellant and appellee purchased said lands at different judicial sales, resulting in this suit in trespass to try title by appellant against appellee. While there is a statement of facts in the record, there are no findings of fact or conclusions of law by the trial judge, and this Court must therefore presume that every fact issue in the case and essential to the judgment was resolved by the trial judge in support of that judgment. As appellant has not assigned error upon any of those implied findings, they become the findings of this Court.
In September, 1934, E. C. Brand, State Banking Commissioner, recovered a money judgment against Lewis Annan, in the 93d District Court of Hidalgo County, and later assigned that judgment to Del-Tex Insur-
Nothing further was done upon that judgment until November, 1936, when, under order of the court in which the judgment was rendered, the constable corrected his original return on the execution, showing levy upon the land and collection of part of the judgment, and that “sale was postponed because the defendant paid to plaintiff, or his assignee, the sum of One Hundred Fifty ($150.00) Dollars on said judgment and this execution is returned on this the 31st day of May A. D. 1935, in order that another execution may be issued hereon.”
On November 9, 1936, under pluries execution, the land was sold to appellee, the judgment creditor, to whom it was conveyed by sheriff‘s deed on December 1st.
In the meantime, however, on September 23, 1936, appellant Bank brought suit against Annan in the 92d District Court of said county to enforce a prior judgment obtained against him in a Missouri Court, and on the following day had the land seized by the sheriff under writ of attachment issued in that suit. The sheriff duly made his return on said writ, and the same was filed on September 25, 1936, and recorded in the attachment records of the County. The attachment lien so fixed was duly foreclosed and the land sold thereunder to appellant Bank, the judgment creditor, on March 3, 1937. Appellant bases the right to recover upon the title acquired at that sale.
Now, the record in this case indicates, and the trial judge impliedly found, that appellee procured judgment against the owner of the land involved, in the 93d District Court of Hidalgo County; that the clerk of that court properly abstracted said judgment, including in the abstract every requirement prescribed in
It is first contended by appellant that the error in the record of the abstract of appellee‘s judgment, whereby it was recited that the judgment was rendered in the 92d, instead of the 93d, District Court of Hidalgo County, was fatal to the validity of the abstract, and rendered it ineffectual for the purpose of notice to strangers of the existence of the judgment lien thereby sought to be established. We overrule the contention. The object of the statutory proceeding for abstract of judgment and recordation thereof is to put subsequent purchasers or encumbrancers of property sought to be charged upon notice of the lien thereby created. If the record is such as to charge third parties with notice of the lien or to excite inquiry which, if reasonably or diligently pursued, would disclose the existence of the lien, then the true object of the statute is served.
Here the judgment was correctly abstracted in all its details, but in recording it the clerk mistakenly wrote that it was rendered in the 92d, instead of the 93d, District Court of Hidalgo County. Both said courts were in Hidalgo County, exclusively, and of course the records of both were kept by the same official in the same courthouse, but cases in each court are rendered definitely distinguishable by a statutory provision that “The letters ‘A’ and ‘B’ shall be placed upon the docket and court papers in the respective district courts of Hidalgo county to distinguish them; ‘A’ being used in connection with the Ninety-second District Court, and ‘B‘, being used in connection with the Ninety-third District Court.”
In the abstract here in question, and the record thereof, the number of the cause in which the judgment was rendered was correctly given as “B“-9961, by which it was allocated by the statutory provision, as a matter of law, to the 93d District Court,
In its fifth and succeeding propositions appellant seems to contend that because the land was seized under writ of attachment procured by appellant after the levy under appellee‘s prior judgment had been made and the execution and order of sale issued thereunder returned “nulla bona,” on the assumption that the cause had been settled, the subsequent sale of the land under a pluries execution issued upon appellee‘s judgment, after amendment of the original return, was void, under the doctrines of waiver and estoppel inuring to appellant under its alleged reliance upon said officer‘s original return. We overrule those propositions.
The record shows, as stated, that appellee filed with the proper officer the abstract of judgment obtained by him against Annan, the common debtor. That abstract was duly recorded and indexed in the appropriate record as provided in
The lien having been fixed as provided by law and extended by timely issuance of execution, it could be abrogated only by satisfaction evidenced in accordance with one of the two methods prescribed by statute, to-wit, By officer‘s return on the execution certified in the manner prescribed, or by receipt duly executed and acknowledged by the owner of the judgment, his agent, or attorney, as provided in
Appellant complains, in its argument, of the action of the court, in the original suit of appellee, in authorizing and directing an amendment or correction of the original officer‘s return upon execution issued in that suit. That action, however, was within the sitting judge‘s discretion (27 Tex.Jur. p. 511, § 51), dependent upon the evidence, which, presumably, he resolved in favor of that action. His ruling was conclusive between the parties to that suit and judgment, although not as to third parties, such as appellant in this case (Id. § 53), who, in a direct action would have been permitted to contradict or vary, or nullify, the return, by his own testimony (Id. § 53). But, after all, in this case the propriety and facts of the returns and amendments thereto, even if questionable in this collateral proceeding, and the fact questions of waiver and estoppel, were for the determination of the trial judge, in his discretion, under the evidence. Appellant does not contend by specific assignment of error that the trial judge abused that discretion in the case, albeit the transactions involved may smack somewhat of a juggling of executions and returns. This Court‘s prerogatives are restricted by the absence of seasonable and specific complaints which reach further down into the vitals of the case.
No reversible error is presented in the appeal and the judgment must be affirmed.
On Motion for Rehearing.
It was stated at the conclusion of the original opinion that “This Court‘s prerogatives are restricted by the absence of seasonable and specific complaints which reach further down into the vitals of the case.” In its motion for rehearing appellant questions, and requests an explanation or elaboration of the quoted statement, and perhaps justly so. But, as the statement is unnecessary to the decision, it would be futile to elaborate upon it, and, in deference to appellant‘s criticism, we withdraw it.
With this qualification of the original opinion, appellant‘s motion for rehearing will be overruled.