Coleman v. Zapp

• Decision Date: 22 February 1911
• Citation: 135 S.W. 730
• Parties: COLEMAN v. ZAPP et al.<SMALL><SUP>†</SUP></SMALL>
• Court: Texas Court of Appeals

135 S.W. 730

COLEMAN v. ZAPP et al.^†

Court of Civil Appeals of Texas.

February 22, 1911.

Rehearing Denied March 22, 1911.

Appeal from District Court, McLennan County; Marshall Surratt, Judge.

Petition for scire facias by Helen Zapp and another for entry of a judgment nunc pro tunc and to revive the same. From a judgment awarding the petitioners the relief sought, Kate Coleman, the judgment debtor, appeals. Affirmed.

In 1898 Helen Zapp and her husband, Hugo Zapp, recovered a money judgment against Winnie Clark, now Kate Coleman, in the district court of McLennan county. In 1902 an execution was issued upon that judgment and levied upon certain personal property. At that time Kate Coleman had become the wife of Stewart McChesney, and they made application for and procured a temporary injunction restraining the sale of the property levied upon. In their petition for injunction, they stated that on the 16th day of May, 1898, the Zapps obtained a judgment against Winnie Clark (now Kate Coleman) for $1,848.43, and all costs of court. It was alleged in that petition that, after the rendition of said judgment, Winnie Clark had become the wife of Stewart McChesney, and it was alleged that the property levied upon was household and kitchen furniture, and exempt from forced sale, and it was also alleged that the judgment referred to was dormant, and that the execution levied on the property was improperly issued. John W. Baker, sheriff of McLennan county, was also made a party defendant in that proceeding. The Zapps filed an answer, assigning various reasons why the injunction should not prevail. The First National Bank of Waco filed a plea of intervention, alleging that it had a prior lien upon the property seized by the sheriff under the execution referred to, and it prayed for judgment for its debt, and establishing its prior lien. In their answer the Zapps sought to revive their judgment against Mrs. McChesney and her husband, Stewart McChesney. The case was tried April 4, 1903, and the entries on the judge's docket show that judgment was rendered as follows: "4/8/03. Judgment for plaintiff perpetuating the injunction heretofore issued, and for defendants for balance due on the judgment sued on by them, viz.: $1,823, against Kate McChesney, alias Winnie Clark, and her husband so far as they may be liable, and for intervener against both plaintiffs for amount of its debt., etc., to which defendants except and give notice of appeal." In entering the judgment upon the minutes, that portion of it which awarded to the Zapps judgment against Kate McChesney for $1,823 and against her husband was omitted; and on May 17, 1909, the Zapps filed in said cause a petition for scire facias, setting out the facts above stated in reference to the rendition of judgment and the failure to enter the same upon the minutes, and alleged that no execution had been issued upon said judgment in favor of the Zapps against the McChesneys, and that, therefore, said judgment was dormant, and they prayed the court to have their judgment entered upon the minutes nunc pro tunc, and that it be revived. At the time of filing the petition for scire facias, etc., the Zapps sued out an attachment which was levied upon certain personal property, which property was delivered by the sheriff, who had levied upon it to C. E. Winn, who filed with the sheriff a claimant's bond, and asserted that the property referred to belonged to him. Kate Coleman filed an answer, interposing many objections to the relief sought, and including a motion to quash the attachment. The substance of that answer is embodied in appellant's assignments of error, and need not be detailed here. The matter came to trial before the court without a jury, judgment was rendered for the Zapps awarding them the relief sought, and Kate Coleman, formerly Kate McChesney, has appealed.

The trial judge filed the following findings of fact, which are sustained by the testimony:

"I find in this case that on the 8th day of April, 1903, a final judgment was rendered herein as shown by a docket entry made by the court in rendering said judgment as follows: `4-8-03. Judgment for plaintiff perpetuating the injunction heretofore issued, and for defendant for balance due on the judgment sued on by them, viz: $1,823.00 against Kate McChesney, alias Winnie Clark, and her husband, so far as he may be liable, and for intervener against both plaintiffs for amount of its debt, etc., to which defendants except and give notice of appeal.'

"I further find that said judgment was incorrectly carried forward and entered in the minutes, omitting that portion thereof wherein judgment was rendered for defendants therein, which said judgment entry is as follows: `No. 12,364. Stewart McChesney et al. against Helen Zapp et al. April 8, '03. On this day came on to be tried the above numbered and styled case, appeared the plaintiffs Stewart McChesney and his wife, Kate McChesney, plaintiffs herein, by their attorneys, and the defendants Helen Zapp and Hugo Zapp, her husband, and John W. Baker, sheriff of McLennan county, by their attorneys, and the First National Bank of Waco, Texas, intervening by its attorneys, and none of the parties having demanded a jury, all parties having announced ready for trial, the matters in controversy, as well of fact as of law, were submitted to the court, and the evidence and argument of counsel having been heard by the court, it is therefore ordered, adjudged, and decreed that the temporary restraining order granted herein on September 12, 1902, in favor of the plaintiffs and against the defendants be perpetuated. It is further ordered, adjudged, and decreed that the plaintiffs herein, Stewart McChesney, and his wife, Kate McChesney, do have and recover of and from the defendants Helen Zapp and Hugo Zapp, her husband, and John W. Baker, sheriff of McLennan county, Texas, all the costs in this behalf expended. It is further ordered that the intervener herein take nothing by its intervention, and that these plaintiffs herein recover of and from said intervener all costs occasioned by, or being the result of said intervention in this suit, for all of which let execution issue.'

"I further find that no execution has ever been issued upon said judgment, either as rendered by the court...