25 S.W. 1115 | Tex. | 1894
Questions certified are:
"1. Between the passage of the Act of 1891, fixing appearance day as the second day of the term, and the passage of the Act of 1893, changing the time allowed the defendant for pleading from the fifth to the second day of the term, was it proper for the District Court to render a judgment by default in a 'trial of right of property' case on the second day of the term, under article 4835, which gives the defendant until 'the time prescribed for pleading' in which to appear and join issue?"
Article 4835 declares: "If the plaintiff appears, and the defendant fails to appear or neglects or refuses to join issue under the direction of the court or justice within the time prescribed for pleading, the plaintiff shall have judgment by default, as in other cases."
The person who makes claim to property levied upon is the defendant, and the statute does not require service upon him, but he stands in court at the first term after claim is made and the oath and bond returned as does every other defendant who has been served for the requisite period before the term begins.
Before the acts referred to in the question were passed, the statutes were as follows:
"Article 1280. The fifth day of each term of the District Court and the third day of each term of the County Court are termed appearance days.
"Article 1281. It shall be the duty of the court, on appearance day *522 of each term, or as soon thereafter as practicable, to call in their order all the cases on the docket which are returnable to such term.
"Article 1282. Upon the call of the appearance docket, or at any time after appearance day, the plaintiff may take judgment by default against any defendant who has been served with process and who has not previously filed an answer."
"Article 1263. In all cases in which the citation has been personally served at least five days before the first day of the term to which it is returnable, exclusive of the day of service and return, the answer of the defendant shall be filed in the District Court on or before the fifth day of the return term, and in the County Court on or before the third day of the return term."
It is evident that the last article and article 1280 relate in part to the same subject, and that together they declared within what time a defendant who was under obligation to answer at a given time must do so, and declare that day to be appearance day.
Before any change was made in article 1280, a person who had made claim under the statute to property levied upon was under obligation to appear and join issue on or before the fifth day of the term succeeding the making of the claim, and if he failed or refused to do so, judgment by default might be rendered against him.
Article 1280, however, was so amended by the Act of July 13, 1891, as to read, "The second day of each term of the District or County Court is termed appearance day;" but article 1263 was not expressly repealed, nor was it amended in terms until this was done by the Act of March 20, 1893, when it was so amended as to conform to article 1280 as amended.
It is claimed that until article 1263 was so amended, it remained in full force, and that judgment by default could not be taken against a defendant until the expiration of the time within which by it he was under obligation to answer.
Article 1263 fixed the period of citation before the beginning of a term necessary to put a defendant subject to default if he failed to answer at the next term after service was made, and in so far remained in force until it was amended.
It also fixed the time within which a defendant, who had been cited for the requisite period before a term began, was required to file an answer; but did not in terms declare that on failure so to file an answer judgment by default might be entered against him.
That was regulated by articles 1280, 1281, and 1282; and after article 1280 was so amended as to make the second day of the term appearance day, there was a conflict between them and so much of article 1263 as prescribed the time within which a defendant should answer; and in view *523 of this conflict, the later law must be held to have repealed so much of the former as was in conflict with it.
Articles 1280, 1281, and 1282, after the first of them was amended, in effect, declared that the second day of a term should be appearance day; that on that day at each term cases in which citation had been served for the requisite period should be called in their order, and that upon this call plaintiffs should be entitled to judgments by default against defendants who had not filed answer.
Right to a judgment by default on the second day of a term is inconsistent with the right of a defendant to answer on the fifth day, and thus avoid default, in the absence of something in the statute showing intention to make the judgment by default only interlocutory.
That a defendant has right to answer at any time before judgment by default is taken, is well settled; and if a defendant appears on the second day of a term and asks for the entire day to answer, it might be proper to grant the request, if this be shown to be necessary; but in the absence of such a request, judgment by default could be properly rendered on the second day of a term, after article 1280 was amended, in all cases in which citation had been served five days before the commencement of the term.
This rule applied, as to time for default, in cases of trial of right of property, if the claim was made and oath and bond returned into court before the commencement of the term, whether this occurred five days before the commencement of the term or not, for in such cases the claimant is not entitled to citation.
The second question certified is: "Should a judgment by default in a 'trial of right of property' case under the Act of 1887 (2 Sayles' Civil Statutes, article 4843), fix the amount of the plaintiff's claim for which the execution is to issue, there being but one writ levied, as well as the value of the property for which judgment is rendered against the claimant?"
The law, as it existed before the act referred to, declared, that "In all cases where any claimant of property under the provisions of this title shall fail to establish his right thereto, judgment shall be rendered against him and his sureties for the value of the property, with legal interest from the date of such bond;" and under that law the judgment could be satisfied by return of the property to the officer, or if the judgment was for a larger sum than was due the plaintiff, by paying the sum due and costs incurred on trial of right of property.
The act referred to in the question certified was amendatory of the law as above stated, and the amendment consisted of an addition to that law as follows: "Such judgment shall be rendered in favor of the plaintiff in the writ, or of the several plaintiffs if more than one, and shall fix the amount of each plaintiff's claim; and in case such judgment should not *524 be satisfied by a return of the property as provided in article 4845, then execution shall issue thereon in the name of the plaintiff for the amount of his claim, or of all the plaintiffs for the sum of their several claims, provided the amount of such judgment exceed such claim or sum; and in such cases the excess of such judgment shall enure to the benefit of any person who shall show superior right or title to the property claimed as against the claimant; but if such judgment be for a less amount than the sum of the several plaintiffs' claims, then the respective priorities of the several plaintiffs shall be fixed and adjusted in the judgment."
The amendment had in view several distinct purposes.
The judgment directed to be entered is for the value of the property claimed, with interest from date of the claimant's bond; but that would give no information of the sum due to a person or to each of several who had caused the property to be seized, which it is important for the clerk to have before he can properly issue execution, which ought on its face to show what a single plaintiff is entitled to, or when there are several plaintiffs, to show what sum each of them is entitled to. This would be necessary for the information of a sheriff whose duty it would be to pay to each plaintiff the sum due to him when collection was made under execution.
That there might be no uncertainty about these matters, the amendment requires the judgment to fix the amount of a single plaintiff's claim, or of the several claims of two or more plaintiffs, by which the sum for which execution shall issue may be ascertained from the judgment itself.
The amendment was further intended to authorize the issue of only one execution to enforce the judgment, although there were several plaintiffs entitled to payment out of the sum to be collected under it.
A further purpose of the amendment was to require the judgment to fix priorities of each plaintiff, when there were more than one, if the judgment, based on the value of property claimed and interest, was for a sum less than that due to all.
What effect on appeal or writ of error should be given to the failure of a court to fix by its judgment the sum due to a single or to each of several plaintiffs, is a question not certified.
Delivered April 2, 1894. *525
