Carpenter v. Probst

• Decision Date: 12 March 1952
• Docket Number: No. 12383,12383
• Citation: 247 S.W.2d 460
• Parties: CARPENTER v. PROBST.
• Court: Texas Court of Appeals

Page 460

247 S.W.2d 460

CARPENTER v. PROBST.

No. 12383.

Court of Civil Appeals of Texas, San Antonio.

March 12, 1952.

Rehearing Denied April 9, 1952.

Carl & Lee, Houston, Sidney Benbow, Inez, for appellant.

Guittard & Henderson, Victoria, Crain & Hartman, Cuero, for appellee.

POPE, Justice.

Appellant D. C. Carpenter commenced this trespass to try title suit against appellee, O. G. Probst, seeking to prove title to a one-seventh interest in 150 acres of land. After the plaintiff and defendant had offered all their evidence, the trial court instructed a verdict in favor of Probst who claimed under a sheriff's deed to him on March 2, 1948. Whether two executions had been properly and timely issued so as to keep alive an eighteen year old judgment is the essential law point in the case.

On February 12, 1930, Farmers State Bank & Trust Company obtained a judgment against D. C. Carpenter in the County Court of DeWitt County. Issuance of the original execution was proved by introducing the execution docket which showed issuance on March 29, 1930, and delivery to the sheriff of the county. The judgment creditor's attorney was called as a witness for appellant, and he produced a letter from his files showing that he wrote the clerk to determine the date the execution was issued. It showed that the clerk returned the letter with the signed notation at the bottom, stating that the execution was issued on March 29, 1930. The clerk also testified independently that he prepared and issued the execution and delivered it in person to the sheriff who stuck it in his pocket. Delivery of the execution to the sheriff was made at the attorney's request. He identified the entry on the execution docket as his signature. Alias and pluries executions each referred to the original 1930 issuance from which the presumption arises that the original execution was properly issued. Benson v. Cahill, Tex.Civ.App., 37 S.W. 1088; accord Blanks v. Radford, Tex.Civ.App., 188 S.W.2d 879. There was no proof that a return was ever made, though a search failed to disclose the original execution and the sheriff who received it is dead. If these facts constituted an 'issuance', under the law as it then existed, the issuance would cause the judgment to survive for a period of ten years from March 29, 1930. Art. 3773, R.C.S. 1925, Vernon's Ann.Civ.St. art. 3773; Zummo v. Cotham, 137 Tex. 517, 155 S.W.2d 600; Gartin v. Furgeson, Tex.Civ.App., 144 S.W.2d 1114; Gillam v. Matthews, Tex.Civ.App., 122 S.W.2d 348. But if it did not constitute an issuance, the judgment would be barred under Article 5532, R.C.S. 1925, since there was no revival by scire facias or an action on debt within ten years after the date of the judgment. Appellant correctly states that an 'issuance' contemplates not only the clerical preparation of an execution, but also includes an unconditional delivery to an officer for enforcement in the manner provided by law. Commerce Trust Co. v. Ramp, 135 Tex. 84, 138 S.W.2d 531, 536; Harrison v. Orr, Tex.Com.App., 296 S.W. 871, 876; Cotten v. Stanford, Tex.Civ.App., 147 S.W.2d 930, 933.

We think the evidence established an issuance. The docket entry itself is an official record and is evidence of the issuance of such writs, Goggans v. Green, Tex.Civ.App., 165 S.W.2d 928; Bendy v. W. T. Carter & Bros., Tex.Com.App., 269 S.W. 1037; Schleicher v. Markward, 61 Tex. 99. The entire absence of a return does not negate an issuance, Tyler v. Henderson, Tex.Civ.App., 162 S.W.2d 170; Bunn v. Mackin, Tex.Civ.App., 25 S.W.2d 942, and Article 3773 of the 1925 statutes does not require a return as an element of issuance. Unlike the facts in Schneider v. Dorsey, 96 Tex. 544, 74 S.W. 526, the proof showed that the writ was delivered into the hands of the sheriff, after which a presumption arises that the officer performed his duty. Schneider v. Dorsey, supra. When there is no showing that the officer was in any way thwarted or deterred from performing his duty, we think issuance is completed upon delivery to the proper officer and that a delivery was here proved, by reason of which the judgment survived at least until ten years after March 29, 1930.

Before the ten years had elapsed counsel for the judgment creditor sought the issuance of an alias execution and it was returned nulla bona. The alias execution was clerically prepared by the clerk and sent to the attorney who had requested the issuance. Called as appellant's witness, he stated that on more than one occasion he discussed with the sheriff, the matter of a collection on the execution. He asked the sheriff to look around and investigate and see if the debtor had anything in the County. He told the sheriff he though the debtor had some cattle...