39 S.W.2d 133 | Tex. App. | 1931
Chas. E. Coombes recovered judgment in the district court of Jones county against G. H. Coody for debt, and against the said G. H. Coody and Mrs. J. T. George for foreclosure of a lien upon certain lots situated in Benjamin, Tex. An abstract of said judgment was duly filed in Knox county and was indexed as required by law, except (as found by the trial court), it "was not indexed under the letter `G' and no index made of the defendant, Mrs. J. T. George's name on said index." Subsequently, said G. H. Coody executed a deed of trust upon other land in Knox county to the First Bank of Truscott to secure certain indebtedness to that bank.
A. C. McGlothlin, having acquired the rights of said Chas. E. Coombes in the judgment first mentioned, brought this suit against G. H. Coody and wife, Cora Coody, and the First Bank of Truscott, to foreclose the judgment lien claimed to exist by reason of the foregoing facts. Sufficient facts, it is conceded, were alleged and proved to entitle the plaintiff to the foreclosure sought as against all the defendants, unless the failure to index the abstract of judgment in the name of Mrs. George precluded the existence of the judgment lien as claimed. Coody and wife defaulted. The First Bank of Truscott, in addition to resisting plaintiff's claim of a lien and the right to foreclose, sought recovery of its debt against Coody and foreclosure of the deed of trust and a chattel mortgage lien. Upon a trial without a jury plaintiff recovered judgment against Coody for the balance claimed upon the judgment. First Bank of Truscott recovered against Coody for the amount of its debt claimed, with foreclosure of the deed of trust and the chattel mortgage lien. The court having made the finding above noted with reference to indexing the abstract of judgment, concluded, and in accordance therewith, adjudged that the lien of the bank was superior to plaintiff's alleged judgment lien, but because of the default of Goody, gave plaintiff judgment of foreclosure of the judgment lien, subject to the foreclosure decreed in favor of the bank. Plaintiff, A. C. McGlothlin, has duly perfected appeal.
The sole question presented is whether or not, by reason of the failure to index said abstract of judgment alphabetically in the name of Mrs. J. T. George, one of the *134
defendants in the judgment, any judgment lien ever in fact came into existence. According to the abstract of judgment no money recovery was had against the defendant Mrs. J. T. George, except a judgment for costs. Apparently she was made a party defendant in the original suit only for the purpose of making the foreclosure sought effective as to her. Appellant contends that, under the authority of Blum v. Keyser,
But we do not believe that, based upon reason or authority, it is a correct statement of the law to say, if an abstract of judgment is not indexed alphabetically in the name of all of the plaintiffs and defendants, that it is effective to create a lien as to those whose names do appear so indexed. It must be borne in mind that the requirements as to recording and indexing an abstract of judgment are not merely to give notice of the existence of an already existing lien, but such are the statutory means by which a lien having no previous existence comes into being. Spence v. Brown et al.,
It has many times been held, as indeed the explicit language of the statute requires, that an index to be sufficient to create the lien must show alphabetically the names of each plaintiff and of each defendant. Pierce v. Wimberly et al.,
The only authority cited upon the point at issue in Blum v. Keyser, supra, was Gin Co. v. Oliver,
In recognition of this principle it was held in Glasscock v. Stringer (Tex.Civ.App.)
But, were it conceded to be the law that an indexing is sufficient, when in any particular case it serves all the purposes of the law, although omitting one or more of the statutory requisites, we would still be unable to hold that such a case is presented here. One of *135 the purposes of the law, as declared by the Supreme Court in Gin Co. v. Oliver, supra, is: "that persons searching for records, in order to discover the existence of judgment liens, may have the means of ascertaining [with promptness and certainty] whether such liens exist or not." Suppose, in this case, an inquirer, having some knowledge of the existence of the suit in which the judgment in question was rendered, and being interested in knowing if there was a judgment lien against Coody, did not know, or had forgotten his name, but did remember that Mrs. George was one of the defendants. Would not an index showing the name of Mrs. George in such case serve the purpose of the law, as above declared? If this were true in one case, may it not be so in others?
We are therefore of opinion that the trial court correctly concluded that there was no judgment lien, and that the judgment of the trial court should be affirmed, and it is accordingly so ordered.