148 S.W. 338 | Tex. App. | 1911
This is a suit instituted by appellee against R. H. Spiller, sheriff of Menard county, to enjoin him from serving, levying, or in any manner executing two writs of execution issued out of the justice's court of precinct number one of Bexar county on January 6, 1911. The executions were issued under and by virtue of two judgments rendered on July 13, 1891, in cases in which D. Sullivan Co. were plaintiffs and E. B. Hollinger the defendant. The executions were attacked on the ground that, more than 10 years having elapsed since the last executions were issued, the judgments were barred by limitation. A temporary injunction was issued. D. Sullivan Co. were made parties, and, together with them, the sheriff pleaded that the absence of appellee from the state of Texas from the year 1897 until the year 1910 had arrested the running of the statute. D. Sullivan Co. claimed ownership of the judgments, and that they were unpaid, and prayed, in the alternative, for judgment for the amount of the two judgments, interest, and costs. The cause was tried by the court, and the injunction was perpetuated, and it was decreed that D. Sullivan Co. take nothing by their cross-action.
It was admitted that appellee removed from the state of Texas in the spring of 1897 and resided in the state of Arkansas from that time until in the month of January, 1899, when he removed to San Luis Potosi, Mexico, where he resided until January 15, 1910, when he removed to Menard county, Tex. On July 13, 1891, D. Sullivan Co. recovered two judgments in the justice's *339 court of Bexar county, Tex., against appellee, one in the sum of $79.31 and the other in the sum of $162.13, and in the same year an execution was issued under each of the judgments, and both were returned not executed because no property could be found.
It is the contention that a judgment is a cause of action within the terms of article 3367, Revised Statutes, which provides that "if any person against whom there shall be cause of action shall be without the limits of this state at the time of the accruing of such action, or at any time during which the same might have been maintained, the person entitled to such action shall be at liberty to bring the same against such person after his return to the state, and the time of such person's absence shall not be accounted or taken as a part of the time limited by any of the provisions of this title." If the judgments against appellee were causes of action, within the purview of the article quoted, the owner of them must have had a cause of action upon which they could have instituted and maintained suit at any time within 10 years from the issuance of the executions, but there was no such cause of action which accrued at any time during the 10 years, and they could not have maintained a suit thereon at any time. They had live, active judgments under which they had the power and authority to issue executions at any time for 10 years from 1891, whether appellee was in or out of the state, and the judgments could have been kept active thereby for an indefinite period of time. They had no cause of action. They had judgments in which their rights had been adjudicated, and that had been kept alive by issuance of executions within the year from the dates of their rendition. The statute of limitations never began to run by reason of the defendant being within the state, but was put into action by the issuance of the executions, and the absence of the defendant from the state did not deprive the owners of the judgment of any right whatever that they had and held under the statutes. The right to issue an execution is not dependent on the existence of property belonging to the debtor or the presence of the debtor in the state, but judgments could be kept alive by the issuance of successive executions in the absence of both property and the person of the defendant. A suit on an active judgment would not be entertained, unless some new or additional right was to be protected, because it would be an utterly useless action, would uselessly incumber the dockets of a court, and would entail inexcusable costs upon the defendant. It could not come within the letter or spirit of article 3367. The law does not open the courts of the country to parties to obtain something they already have without the aid of the courts. During the 10 years life of a judgment, which begins with the issuance of an execution within 12 months from the rendition of the judgment, the owner of the judgment has no cause of action against the defendant which has accrued or can accrue, but the cause of action has been merged into an active vital judgment which can be kept in that condition for an unlimited number of years.
The case is different with a judgment, under which no execution has been issued within 12 months from its rendition, for in that case there is a dormant judgment under which no execution can be issued (article 2326a), and the only way in which a plaintiff holding such a judgment can preserve his rights is by availing himself of the authority given by article 3361 of reviving his judgment by scire facias or an action of debt brought thereon within 10 years from the date of the judgment. In that case the plaintiff would have a cause of action under the terms of article 3367, and the absence from the state during the 10 years dormancy of the debtor would arrest the running of the statute of limitations while such absence continued. In the case of Low v. Felton,
Following up the question as to whether suits will ordinarily be permitted on vital judgments, we find the matter definitely settled by the courts of Texas. Johnson v. Murphy,
There is in the statutes of Texas no definite law prescribing in terms the time in which a judgment upon which an execution has been issued within twelve months from its rendition shall become barred, although the law is definite as to the time in which a judgment will become barred under which no execution has been issued within twelve months. However, there has been read into the statutes by the Supreme Court 10 years' limitation from the date of the last execution. Willis v. Stroud,
In the other two cases cited on the subject the same ruling was made. No reference is made in either of the decisions, however, to article 2326a, passed in 1895, no doubt because the judgments under consideration were rendered prior to the passage of that article. In the article mentioned it is provided: "If no execution is issued within twelve months after the rendition of a judgment in any court of record, the judgment shall become dormant and no execution shall issue thereon unless such judgment be revived; but where the first execution has issued within twelve months the judgment shall not become dormant unless ten years shall have elapsed between the issuance of executions thereon, and execution may issue at any time within the ten years after the issuance of the preceding execution." We find in Black's Law Dictionary that a dormant judgment is defined as "one which has not been satisfied nor extinguished by lapse of time, but which has remained so long unexecuted that execution cannot now be issued upon it without first reviving the judgment." It has never been doubted that the word "dormant" has that signification as applied in first part of article 1664, which applies to judgments of justices of the peace, which is almost identical with article 2326a, hereinbefore copied, and all rules of statutory construction would give it the same meaning when applied in the same article to judgments under which an execution has been issued within twelve months from the rendition of the judgment. If dormancy means a supension of functions for a certain period in the one instance, it must under all reasonable rules of construction mean it in the other. In Cooper v. Yoakum,
If the language of articles 1664 and 2326a means anything, it means that a judgment under certain circumstances will become dormant, that is, inactive, in 12 months after rendition, and will remain so unless revived, and that a judgment under another set of circumstances will become dormant, that is, inactive, in 10 years from the time when an execution was issued, and remain so unless revived. In the first instance — that is, in regard to a judgment under which no execution has issued within 12 months from its rendition — 9 years is given by statute in which it can be revived. No time is prescribed in which the judgment can be revived or an action of debt sustained when a legal execution has been issued, and it would clearly *341 fall within the provisions of article 3358, which are as follows: "Every action other than for the recovery of real estate, for which no limitation is otherwise prescribed, shall be brought within four years next after the right to bring the same shall have accrued, and not afterwards." We hold, therefore, that the judgments of appellants against appellee became dormant in 1901, 10 years from the time the executions were issued, and that, under the statute, appellants had at that time the authority to institute suit to revive their judgments or to maintain an action of debt.
When the judgments became dormant, appellants then had a cause of action within the purview of article 3367, and, appellee being without the limits of the state at the time of the accruing of such action, the running of the statute of limitation of four years was suspended until his return, when an action to revive or for debt could be maintained.
Since arriving at the foregoing conclusions we have obtained a copy of a recent opinion of the Court of Civil Appeals of the Third Supreme Judicial District in the case of Gale Mfg. Co. v. Dupree,
The judgments owned by D. Sullivan Co., being dormant at the time of the issuance of the executions, could not, when attacked by the judgment debtor, support such executions, and the sheriff was properly enjoined from seizing and selling property by virtue of them, but the injunction should not have been perpetuated when it was ascertained that appellee's debts to appellants had not been paid. Seymour v. Hill,
The judgment of the lower court is reversed, and the court having filed conclusions of fact showing that the amounts of the two judgments have never been paid and that the sum of the two judgments amounts to $240.44 with 12 per cent. interest per annum from July 13, 1891, it is the order of this court that appellants D. Sullivan Co. do have and recover of E. B. Hollinger the sum of $240.44, with interest as stated, together with the sum of $10.20, costs in the justice's court, that the injunction be dissolved, and as the suit arose in the district court through the acts of appellants in issuing executions on voidable judgments appellants will be adjudged to pay the costs of the district court.
Reversed and rendered.
MOURSUND, J., entered his disqualification in this cause, and took no part in its decision.