Case Information
*1 ?&is opinion nodlfles opinion #o-1568 Honorable Holvey Willlepa~
Criminal District Attorney
Waco, Texas
Dear Sir: opinion. NO. 0-2630
Re: Proper indexing of abstracts of judgment
We have for reply your letter of Augwt l3, 1940, requesting the opinion of this department upon the following matter:
"Mr. Floyd Mitchell, County Clerk of MocLennan County, has called on this office for an opinion a8 to how the enclosed abatract of judgment should be indexed. You will note that there are several defendants to the suit but the abstract of jud@uent shows that plaintiff only recovered judgment against H. F. Poohyla, one of the defendanta; however, the abstract of judment shows that an order of sale we.8 issued out of this pauee and it is very probable that a judment for forecloeure vae rendered againet at least some of the other defendants. Hr. Mitchell wants to lmow if this abstract of judgment should be indexed against all of the defendants mentioned in this instru- ment or if it should be indexed only against H. F. Pochyle.
"It ia our opinion that this abstract of judeent should be indexed only againet the defendant, Ii. F. Pochyla, and for our authority, ve refer to your opinion Bo. O-1568.
However, as mentioned in this opinion, an abstract of judg- ment should be indexed againet every defendant in the judg- ment, even though the jud@nent againat him was only for foreclosure or for COStsj it appears from this abstract of judgment that judFpnent for forecloeure was rendered against at least ecme of the other defendants to this suit, but if these facts are true, inasmuch ae they are not named, would it be the duty of the County Clerk recording and indexing such a judgment to look further than the abstract of judg- ment filed with him?"
The abstract of judgment ineofar ae pertinent here reads a8 fo I,lows "
-- "The State of Texas,
County of Dallae.
"I, Pearl Smith, Clerk of the Dietriot Court of Dallas County, Texas, do hereby certify that in the District Court of the 14th Judicial District of Texae, in a certain suit pending in said Court, wherein Bankers Life Company, a corporation, is plaintIff, and H. F. Poohyla, Johanna Pochyla, StansellBryen, Trustee, J. R. Torrance, 0. D. Sanders and Joe Headen, are defendants, Ho. 47162-A. The said plaintiff - Bankere Life Campany, a corporation recovered a jud@nent against said defendant -H. F. Poohyla l * *. Said judeplent is entitled to the following credits, to-wit: (Here is listed a credit as a result of the execution of an order of sale). * * *"
In Opinion No. O-1568 this depe.r+zuent exhaustively analyzed the authorities in this state relative to the creation of statutory judgment liens under Articles 5447 and 5448 of the Revised Civil Statutes of Texas, 1925, which read a8 follows:
"Article 5447. - Abstracts of Judments. Each clerk of a court, when the person in whose favor a jud@nent wae rendered, his agent, attorney or assignee, applies therefor, shall make out, oertWy under his hand and office seal, and deliver to such applicant upon the payment the fee allowed by law, an abstract of suoh judment showing:
"1. The names of the plaintiff and of the defendant in such judgment.
"2. The nmber of the euit in which the judgment was rendered. The date when such judment wae rendered.
“3. The amount for which the jud@uent vae “4. rendered and the balance due thereon. The rate of interest specified in the
“5. judment.
"Each justice of the peace shall also make and deliver an abstract of any judgment rendered in his court in the manner herein provided, certified under his hand." *3 Honorable Holvey Williama, Page 3 (0-2630)
“Article 5448. - Recording jud@enta. Eaah county olerk shall keep a well bound book called the 'Judaent Record', end he ehall immediately file end therein record all properly authenticated abstracts of judment when presented to him for record, noting therein the day and hour of such record. He shall at the same time enter it upon the alphabetical index to much jud@nent record, show- ing the name of eaah plaintiff end of each defendant in the judgment, and the number of the page of the book upon whioh the abstract is recorded. He shall leave a epaoe at the foot of each such abstract for the entry of credits upon and satisfaction of such judmente and shall enter the eeme when properly ahown.'
In that opinion we held that under Article 5448 in order to ef- fectuate a judgment lien the county clerk should enter upon the alphabetieal index to his judgment record the name of each plaintiff and of each defendant appearing upon the face of the Judepnent; thatifa party is known as plain- tiff or defendant in the judgment his name should be indexed We held this necessary although no personal judment for debt has been rendered against such pla-&tiff or defendant (a judfpnent in rem for foreclosure being-sufficient); and even though the only judsent rendered again& any party to the judgmect is for costs. We reaffirm this holding, and are enclosing a copy of this opinfon for your perusal.
However, in Opinion I?o. O-1568 we indicated that the county clerk with reference to the particular abstract of jud@ent form su?xuitted should index only the name of the defendant set forth in the reoovery clause. To that extent Opinion IVo. O-1568 is modified.
The county clerk of any particular county doee not have the benefit of, nor have acceee to the official judaenta filed in all the offices the clerks of the various courts over the state. He should not be, nor do we believe he is required to look further than the abstract of those judpente which, if properly prepared, would reflect all of the information they are required to contain under Article 5447 of the Revieed Civil Statutes, in-luding the namee of all of the plaintiffe and all of the defendanta appearing upon the face of the jud@nent.
It follows that the criterion of the county clerk in all cameo must be the abstract of judgment. If a party appears a8 a plaintiff or a defendant upon the abstract of judsplent whether named in the recovery clause or not his name should be indexed.
In the specific case at hand we assume that the nemee of H. F. Pochyla, Johanna Pochyla, Stansell Bryan, Truetee, J. Ii. Torrance, 0. D. Sanders, and Joe *4 Headen were aI1 Pieted as defendanta in the jud@mnt the district s1.sb c,f Dallas County had before her when ehe prepared the abstract. 1,'; f~i',;~$.s and you are advieed that under Article 5448 the namea of all e,l;ch defe:&c:s should be indexed by the county clerk.
Very truly yaurs mls 0PRi10Ly
COlmDRBml Am
APPEOVED m
IaMTrED
CORFERERCE
JE3:Z-W
EIVCIDSURE
APF'ROVED SEP SDS 1940
/a/Gerald C. Mann
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