Fitzgerald v. Huffman
| Decision Date | 15 June 1880 |
| Docket Number | Case No. 4046. |
| Citation | 53 Tex. 461 |
| Parties | A. FITZGERALD v. EVANS & HUFFMAN. |
| Court | Texas Supreme Court |
ERROR from Tarrant. Tried below before the Hon. J. A. Carroll.
Samuel Evans and W. A. Huffman, the defendants in error, on the 12th day of March, 1878, filed in the district court of Tarrant county a petition for the revival of a dormant judgment rendered in that court in their favor against A. Fitzgerald, plaintiff in error, on the 15th day of March, 1876, for a sum of money specified in that judgment.
Fitzgerald failed to appear and answer in the proceeding for revival of judgment, and on the 22d day of March, 1878, the court rendered judgment of revival of the former judgment in favor of defendants in error, and against Fitzgerald.
On the 15th day of March, 1880, plaintiff in error filed with the clerk in the district court of Tarrant county a petition for a writ of error, at the same time filing writ of error bond, together with assignment of errors.
The action of the lower court by which it attempted to revive the former judgment, recites: “It appearing to the court that heretofore, to wit, on the 15th day of March, 1876, by a judgment of the court which is of record on pages 24 and 25 of Book A of the minutes of this court, the plaintiffs herein, said Evans & Huffman, recovered a judgment against the said defendant, A. Fitzgerald, and that execution issue on the said judgment rendered as aforesaid, and that plaintiffs do have judgment for all costs in this behalf expended, etc.”
There appears in the transcript nothing save the above, to revive the former judgment.
Cooper & Pendleton for plaintiff in error.--When scire facias is used for the purpose of reviving judgment on which execution has not issued for twelve months after its rendition, it is in the nature of an action, and should contain all the allegations and recitals of previous proceedings necessary to show the plaintiff's right, and that he is entitled to all the judgment or relief prayed for in the action. Boone v. Roberts, 1 Tex., 152-3, and authorities there cited. Counsel also insisted that the judgment of the court below was not a final judgment, citing 3 Black. Com., 395; Freeman on Judgments, p. 2, sec. 2; 40 Tex., 290.
John D. Templeton for defendant in error.
I. The court will not reverse a judgment because it is informal, if from the record the intention of the court can be clearly ascertained and the judgment can be intelligently executed. The judgment declares the existence of the dormant judgment and awards execution thereon. Bullock v. Ballew, 9 Tex., 498;Camp v. Gainer, 8 Tex., 373-4;Minkhart v. Hankler, 19 Ill., 48; Freeman on Judgments, secs. 2, 47, 50, 51.
II. The court will not reverse for want of form, if from an inspection of the record it can reform and render judgment. R. S., art. 1043; Waller v. Huff, 9 Tex., 534.
In this case, doubtless through inadvertence, that which purports to be the judgment of revivor is so...
To continue reading
Request your trial
-
Trammell v. Rosen
...the judgment should further contain the declaration of the court pronouncing the legal consequences of the facts found. See Fitzgerald v. Evans et al., 53 Tex. 461; Mayfield v. State, 40 Tex. 289; Land & Loan Co. v. Winter, 93 Tex. 560, 57 S. W. 39; the unpublished opinion of this court in ......
-
Hickman v. Swain
...the name of the defendant Farmer was omitted, while the names of other defendants were given. We sustain this contention. In Fitzgerald v. Evans, 53 Tex. 461, it is said that a final judgment should "(1) The facts judicially ascertained, with the manner of ascertaining them entered of recor......
-
Mendenhall v. Glenn
...Chandler, 635 S.W.2d at 897 (citing Comet Aluminum Co. v. Dibrell, 450 S.W.2d 56, 59 (Tex. 1970) (orig. proceeding), Fitzgerald v. Evans & Huffman, 53 Tex. 461, 463 (1880), and Davis v. Hemphill, 243 S.W. 691, 693 (Tex.Civ.App.—Fort Worth 1922, no writ)). That is, the validity of a judgment......
-
Cotten v. Stanford
...No. 85 or granting to the appellee Stanford a recovery of any sort, the judgment in the original suit is still dormant (Fitzgerald v. Evans & Huffman, 53 Tex. 461), and as such it will not only fail to support an execution but will authorize an injunction against the seizure and sale of pro......