Askey v. Power

• Decision Date: 29 June 1929
• Docket Number: (No. 12174.)
• Citation: 21 S.W.2d 326
• Parties: ASKEY v. POWER et al.
• Court: Texas Court of Appeals

Page 326

21 S.W.2d 326

ASKEY v. POWER et al.

(No. 12174.)

Court of Civil Appeals of Texas. Fort Worth.

June 29, 1929.

Rehearing Denied October 5, 1929.

Appeal from District Court, Wise County; J. E. Carter, Judge.

Suit by W. H. Askey against Mrs. Alice Power and others. Judgment for defendants, and plaintiff appeals. Affirmed.

John L. Poulter, of Fort Worth, for appellant.

C. T. Gettys and M. W. Burch, both of Decatur, for appellees.

CONNER, C. J.

W. H. Askey instituted suit in the district court of Wise county against T. J. Power, administrator of the estate of D. L. Power, deceased, and Alice Power, surviving widow of D. L. Power, and Jessie Power, Henry Power, Opal Power, Yarbrough Power, Elisha Power, Willie D. Power, and Frank Power, legal heirs of D. L. Power, alleging in his third amended original petition, upon which the trial proceeded, that on December 1, 1923, the plaintiff Askey recovered a judgment against the said D. L. Power for the principal sum of $3,540.40, with interest thereon from said date in the sum of $2,278.80 at the rate of 10 per cent. per annum, and in the sum of $538.30, at the rate of 8 per cent. per annum, and in the sum of $723.12 at the rate of 6 per cent. per annum; that about December 3, 1923, plaintiff applied to the clerk of the district court of Wise county for an abstract of said judgment, which was duly made and delivered to plaintiff; that on December 4, 1923, plaintiff presented said abstract to the clerk of the county court of Wise county for record in the proper judgment lien records of said county, which was on the same day by said clerk duly filed and recorded on page 231 of the judgment lien records; that at the time of the recording of said judgment and abstract thereof, the same was duly and properly indexed alphabetically, showing the names of both the plaintiff and the defendant and the book and page upon which the same was recorded, in all things as provided by law, as shown by said records and the indexes thereof.

It was alleged by virtue of the filing and recording and indexing of the abstract referred to that plaintiff acquired a statutory and legal lien on all real estate owned or thereafter acquired by said D. L. Power. It was further alleged that about June 1, 1924, execution had been duly issued on said judgment and the sum of $345.25 was collected by virtue thereof, but that all of the balance of said judgment, including principal and interest, was due and unpaid.

It was further alleged that D. L. Power died intestate about June 8, 1924; that T. L. Power was duly and legally appointed administrator of said estate, and "on or about November 1, 1925, plaintiff presented his claim against said estate based on said judgment and abstract lien to said administrator for allowance which claim was in all things refused and rejected by said administrator, and on November 19, 1925, plaintiff instituted this suit to establish said claim and enforce said lien against the lands belonging to said estate of said D. L. Power, deceased."

The petition then set forth a description of five separate tracts of land, aggregating approximately 1,383 acres, which it was alleged D. L. Power owned on December 4, 1923, at the time of recording and indexing of said abstract of judgment, and the prayer was for a recovery on final hearing judgment for his debt, principal, interest, and costs of suit, with a foreclosure of his judgment lien on all the lands described; and further, in the alternative, that if it be found that plaintiff was not entitled to this relief, then plaintiff have judgment against all defendants establishing his debt with interest and costs, and the judgment be certified to the county court of Wise county sitting in matters of probate, to be there classified and enforced according to law, and for general relief.

The plaintiff in a second count further pleaded that his suit, as originally instituted on November 19, 1925, sought relief on the grounds stated in his first count, and that in answer thereto the defendants Alice Power and T. J. Power, the administrator, answered, among other things, that the abstract of plaintiff's judgment had not been properly filed, recorded, or indexed, as required by law, so as to create a lien on the lands described in plaintiff's petition; and that, in event it should be found that the abstract of judgment had been defectively recorded or indexed, then he have judgment against the sureties, E. B. Gibson and others (who had already been made parties), on the official bond of the clerk, for any failure of duty or neglect on the part of the clerk to properly record and index his abstract of judgment, etc.

The defendants named pleaded a general demurrer, a general denial, and special demurrers and special matters of defense not thought necessary to set forth.

A jury was impaneled, and after the introduction of evidence in behalf of plaintiff had been offered and submitted, and after the plaintiff had closed his testimony, the defendants requested the court to give a peremptory instruction to the jury in their behalf. The court indicated that in his opinion the evidence failed to establish plaintiff's alleged judgment lien, whereupon the plaintiff requested the court to reopen the case and permit him to further prosecute the same against the bondsmen on the clerk's official bond. This was refused, and the court gave to the jury the peremptory instruction requested by defendants, and, upon return of the verdict in accordance with the instruction, entered a judgment that plaintiff take nothing by his suit and that all defendants be discharged with their costs. From the judgment so rendered, the plaintiff has duly prosecuted this appeal.

As we view the record, three material questions are presented for our determination. They are:

(1) Did the trial court err in concluding that the evidence was insufficient to establish the judgment lien declared upon by appellant?

(2) Did the court abuse his discretion in refusing to permit appellant to withdraw his announcement and to further prosecute the suit against the sureties on the clerk's bond?

(3) Did the court err in refusing to render judgment against the administrator establishing the judgment as a claim against the estate?

We will undertake to dispose of these questions in the order in which they have been stated.

Appellant offered in support of his alleged judgment lien the following abstract as delivered to him:

NOTE: OPINION CONTAINING TABLE OR OTHER DATA THAT IS NOT VIEWABLE

As actually recorded for the purpose of securing the lien, it thus appears:

NOTE: OPINION CONTAINING TABLE OR OTHER DATA THAT IS NOT VIEWABLE

The foregoing abstract bore the file marks of the county clerk of Wise county, to the effect that the same was filed in his office on December 4, 1923, at 9 o'clock a. m., and also on May 27, 1926, at 11 o'clock, said first filing being signed by Jim Belew, clerk county court, Wise county, Tex., by G. S. Blewett, deputy, the latter filing being signed Ruth Dunaway, clerk county court, Wise county, Tex Article 5447, Rev. Statutes of 1925, provides, in so far as necessary to quote, as follows:

"Each clerk of a court, when the person in whose favor a judgment was rendered, his agent, attorney or assignee, applies therefor, shall make out, certify under his hand and official seal, and deliver to such applicant upon the payment of the fee allowed by law, an abstract of such judgment showing:

"1. The names of the plaintiff and of the defendant in such judgment.

"2. The number of the suit in which the judgment was rendered.

"3. The date when such judgment was rendered.

"4. The amount for which the judgment was rendered and balance due thereon.

"5. The rate of interest specified in the judgment."

The succeeding article, 5448, provides that the county clerk shall keep a well-bound book called the "judgment record," and shall immediately file and therein record all properly authenticated abstracts of judgment when presented to him for record, noting therein the day and hour of such record, and he shall "at the same time enter it upon the alphabetical index to such judgment record, showing the name of each plaintiff and of each defendant in the judgment, and the number of the page of the book upon which the abstract is recorded."

Article 5449 provides that when any judgment "has been so recorded and indexed, it shall from the date of such record and index operate as a lien upon all of the real estate of the defendant situated in the county where such record and index are made," etc.

Appellant alleged that his abstract had been recorded in the judgment lien records of the clerk's office in book 2, on page 231. Appellant offered the testimony of Clifford Hall, who testified that he was the deputy clerk of Wise county and the custodian of the records; that the book handed him was the abstract of judgment record No. 2 of Wise county; that, as originally printed, the page upon which the abstract was recorded was numbered "232," but that said figures had been marked through by pen marks and had written with pen and ink in their stead "231-a." The witness then referred to the index of the judgment record No. 2 and testified that turning to the letter "A" in the index he found the case of W. H. Askey v. D. L. Power, No. 5290, appearing under that letter, referring to book 2, page 232; that turning to the letter "P," he found the same case referred to as "Power, D. L. vs. W. H. Askey, book 2, page 232;" that the pages in the book were numbered consecutively with printed numbers throughout the book; that he did not know how the pen and ink line scratched through the number 232, and the number 231-a written under it in ink, had occurred.

G. S. Blewett testified in behalf of plaintiff that he was the deputy county clerk in 1925, and as such had charge of the filing of instrument and the recording of them; that he filed the abstract of judgment in question in...