Black v. Epperson

• Decision Date: 01 January 1874
• Citation: 40 Tex. 162
• Parties: P. T. BLACK v. B. H. EPPERSON ET AL.
• Court: Texas Supreme Court

40 Tex. 162

P. T. BLACK

v.B. H. EPPERSON ET AL.

Supreme Court of Texas.

1874.

1. A judgment in the supreme court, rendered April 28, 1859, affirming the judgment below, with damages against the plaintiff in error, in a case in which the writ of error and error bond bear date 4th of same month, is not void.

2. Prior to the repeal, January 28, 1860, of the 6th section of the act concerning proceedings in the supreme court (Pas. Dig. arts. 1583-1592), and under the repealed section, it was the duty of the plaintiff in error to file the record within forty days after the perfection of his process in error, and the practice in this case was in accordance with the law in force at the date of said judgment in the supreme court.

3. Everything must be presumed in favor of regularity in all things necessary to the jurisdiction of a court having exclusive jurisdiction of the subject.

4. Upon an affirmance, on appeal or error, of a judgment, and against the sureties on the error or appeal bond, such surety, being liable, may at any time pay the judgment, and thereby become subrogated to all the rights of the creditor at the time of such payment.

5. The official notice of the action of the supreme court to the district clerk after the writ of error has been perfected, is the mandate, and until the mandate is filed the clerk cannot issue execution; therefore, the issuance and filing of the mandate will be presumed, from the issuance of executions upon a judgment in the district court, after the same has been affirmed on error.

6. There is no prohibition on the issue of a second mandate, and the issuance of one is not inconsistent with the fact of a former one.

7. By the act of February 14, 1860, and the act of November 9, 1866, the vitality of all judgments in the district court was extended for a term of ten years between executions.

8. The judgment of the supreme court, April 28, 1859, against the plaintiff in error and sureties on the error bond, fixed a lien upon the lands in the county belonging to the plaintiff in error and his sureties; the issuance of executions in June, 1859, on February 2, 1860, on September 6, 1860, returned February 4, 1861, preserved the lien until the war; the war and the stay law of December 7, 1861, renewed and extended in December, 1863, enforced by military orders in 1865, protracted by the convention of 1866, modified and renewed by the legislature of 1866, and continued in practical effect until February 24, 1868 (when the stay law was declared unconstitutional), excused acts of diligence, and during that term such judgment lien was preserved.

9. Scogin v. Perry, 32 Tex. 21, limited.

10. See history of the stay measures and their effect from 1861 to 1868.

11. An indigent debtor can sell his homestead and acquire another without subjecting the abandoned homestead to his general debts, the vendee taking as against a judgment creditor who otherwise would have a lien.

APPEAL from Titus. Tried below before the Hon. J. D. McAdoo.

Walton & Green, for appellees, on motion to dismiss. In asking the court to dismiss this appeal on the grounds of insufficiency of the assignment of error, we act from no desire to present frivolous or captious points of delay or objection, but ground our motion upon what has often been announced by this court as the law governing the case.

We submit that the assignment of error in this cause is too vague and general, and does not fill the measure prescribed in art. 1591, Pas. Dig., and so recently demanded by this court. See Rule 22.

The warning voice of this court has gone out, time after time, remonstrating against that loose and irregular practice which calls upon the court to search out for itself from the folds of voluminous records the portion challenged as erroneous; and although this court may not hitherto have refused to perform the labor thus unduly thrown upon it, it has ever maintained its right to decline to review a record where the party asking reversal did not, to use the language of this court, in Seawell v. Lowery, 16 Tex. 51, “put his finger on the error.”

In the case of Hicks v. Bailey, 16 Tex. 229, the court in terms refuse to inspect “the various instruments of evidence” contained in the record, in order to see whether or not a general assignment of error was cause for reversal; and we further call the attention of the court to the objection made in the same case to such generality, on grounds that assignment “gives the defendant in error no notice of the particular error intended to be relied on for reversal.”

The assignment in this case remands your honors to the record for the “facts” upon which it complains erroneous judgment was rendered, and to a motion for a new trial, which is equally vague and uncertain, directing the court in no way to a particular error.

We urge the court to do themselves and us the justice of demanding that the plain requirements of the rule as laid down in cases cited be complied with, and that the indulgent warnings, as given in Thompson v. Thompson, 12 Tex. 329;Colquhoun v. Howard, 28 Tex. 143;Davis v. Davis, 34 Tex. 15;Wright v. Hays, 34 Tex. 253; be heeded, and Rule No. 22 be enforced.

Culberson & Sparks, for appellant. The only questions which we shall consider in support of the assignment of errors are:

1. Was the judgment against Harris a lien upon the land described in the petition at the date of its rendition?

2. Has the judgment lost its lien, either by the laches of the creditor, or by the subsequent sale of the land by the debtor?

3. Does the lien subsist and inure to the benefit of the surety on the writ of error bond, who has paid off the judgment?

I. In affirmance of the first proposition, we cite Pas. Dig. art. 3783, which we think was the only statute in force upon the subject at the time the judgment was rendered. See also Robertson v. Moorer, 25 Tex. 428, and Berry v. Shuler, 25 Tex. S. 140. The statute of February 14, 1860, was enacted subsequent to the rendition of the judgment; and so far as that act required registration of judgments, it did not apply to this. Its language is, ““No judgment hereafter rendered,” etc. See Pas. Dig. art. 3963.

II. Nor do we think that the lien of judgment has been lost. From the date of the fourth execution until the act of secession, was five months and twenty-three days. After the state government and the courts and records had passed into the possession of an authority in hostility to the United States, was the judgment creditor at once compelled to recognize that authority, even though she were a citizen of the state? In several cases the supreme court of the United States have decided that the rebellion suspended all statutes of limitation as against citizens outside of the rebellious districts; and they say, that “neither laches nor fraud can be imputed to the creditor in such a case, as the inability to sue becomes absolute by the declaration of war.” See Levy v. Stewart, 11 Wall. 254;6 Wall. 534;12 Wall. 700. The sovereign authority of this state also recognize the force of this rule and apply it between citizens of this state, and in doing so relate its operations back anterior to the act of secession, and to a period to within four months and twenty-two days of our fourth execution. See section 43, article 12, of the state constitution. And this court has decided, that “this provision is neither ex post facto nor a law impairing the obligation of a contract.” See Crawford v. Bender. 33 Tex. 745.

If we are mistaken as to the effect and operation of this provision, still we show that the first stay law was enacted December 7, 1861, and less than one year after the return of the last execution. When this execution was issued does not appear from the records of the district court of Titus county, except inferentially from the entries on the execution docket, which was the only evidence upon the subject, and wherein the last entry of the issuance of execution is March 4, 1860, but there is an entry of the return of an execution on February 4, 1861. We respectfully submit, that it is more reasonable to presume that this last execution was issued at the next preceding term of the court, rather than that the clerk would issue an execution returnable more than a year after its date. Be this as it may, however, it seems to have been the turning point in the case with the court below, and the court by its judgment seems to have decided that it was necessary to have an execution every six months to keep alive the lien of the judgment. To us this appears to be a severe construction of the statute by virtue of which we claim this judgment lien. The judgment of the court was doubtless influenced by the decisions of this court, upon the construction of the language of an essentially different and older statute. See article 3954, Pas. Dig.; and also see 13 Tex. 515;13 Tex. 379;1 Tex. 508;7 Tex. 269. It will be perceived, upon comparing article 3783, Pas. Dig., with article 3954, same digest, that the latter is much more onerous on the creditor than the former. The last section is from the act of February 5, 1840, whereas the former section is from the act of January 27, 1842, and which statute was the only law in force upon the subject at the rendition of this judgment. The statute of 1840 required, to preserve the lien of the judgment, that execution should issue thereon within twelve months, and “that due diligence should be used to collect the same.” The subsequent and amended statute, entitled “An act to reduce into one and amend the several acts concerning executions,” only required that execution should issue within twelve months after judgment (see General Laws, Sixth Congress, p. 66), and was clearly substituted for the former statute.

It will be seen by reference to the cases last cited that they all proceed upon the wording of the old statute, or at least we can find no case where this distinction has been observed or noted, either in...