Hicks v. First Nat. Bank in Dalhart

• Decision Date: 06 July 1989
• Docket Number: No. 07-88-0215-CV,07-88-0215-CV
• Citation: 778 S.W.2d 98
• Parties: Allen Wayne HICKS, Appellant, v. FIRST NATIONAL BANK IN DALHART, Appellee.
• Court: Texas Court of Appeals

Page 98

778 S.W.2d 98

Allen Wayne HICKS, Appellant, v. FIRST NATIONAL BANK IN DALHART, Appellee.

No. 07-88-0215-CV.

Court of Appeals of Texas Amarillo.

July 6, 1989.

Rehearing Denied Oct. 11, 1989.

Second Motion for Rehearing Denied

Nov. 9, 1989.

Richard C. Naylor, Nickum and Naylor, Amarillo, for appellant.

William A. Cunningham, Davis, Cunningham & Enns, Dalhart, for appellee.

Before REYNOLDS, C.J., and BOYD and POFF, JJ.

POFF, Justice.

This appeal arises out of two underlying cases, Nos. 2882 and 3239, consolidated in the trial court as No. 2882. The first case, original No. 2882, was filed on April 10, 1981, by appellee First National Bank in Dalhart (the "bank") against appellant Allen Wayne Hicks ("Hicks") to recover the balance due on a promissory note. A default judgment was signed more than five years later on May 2, 1986. A writ of execution was issued more than 21 months later on February 17, 1988, and returned nulla bona.

The second case, original No. 3239, was a garnishment action filed on February 12, 1988, by the bank against garnishee Dalhart Federal Savings and Loan Association to recover funds belonging to Hicks in possession of the garnishee. Hicks filed a pleading styled "Motion to Vacate Judgment and Dismiss Action" in No. 2882, and a motion to dissolve the writ of garnishment in No. 3239. Both motions were overruled, the cases consolidated, and a judgment rendered against the garnishee for funds belonging to Hicks.

Hicks raises two points of error on appeal. By his first point of error, he contends that the trial court erred in failing to vacate the default judgment and dismiss original No. 2882 for want of prosecution, because the lawsuit had been abandoned as a matter of law prior to entry of the default judgment. By his second point of error, Hicks contends that the trial court erred in failing to dissolve the writ of garnishment because the default judgment had become dormant under Tex.Civ.Prac. & Rem.Code Ann. § 31.006 (Vernon 1986) and would not support issuance of the writ of garnishment. We disagree with these contentions, and for the reasons below will affirm the judgment of the trial court.

By his first point of error, Hicks seeks appellate review of the validity of the default judgment. Although the issue has not been addressed by either party, we conclude that Hicks' "Motion to Vacate Judgment and Dismiss Action" constituted an impermissible direct attack on the default judgment. The motion was filed on March 4, 1988, long after the deadlines had passed for filing a motion for new trial or suing out a writ of error. See Tex.R.Civ.P. 329b(a); Tex.R.App.P. 45(d). When the time for filing a motion for new trial has expired, and relief may not be obtained by appeal, a bill of review is the exclusive method for vacating a default judgment rendered in a case in which the court had juridictional power to render the judgment. Tex.R.Civ.P. 329b(f); McEwen v. Harrison, 162 Tex. 125, 345 S.W.2d 706, 710 (1961). Jurisdictional power means jurisdiction over the subject matter, i.e., the power to hear and determine cases of the general class to which the particular case belongs. Middleton v. Murff, 689 S.W.2d 212, 213 (Tex.1985); Deen v. Kirk, 508 S.W.2d 70, 72 (Tex.1974).

The default judgment in this case was rendered in a suit on a promissory note, a matter within the district court's subject matter jurisdiction. See Tex. Const. art. V, § 8. Under these facts, a bill of review was the sole method available to attempt to vacate the default judgment. See also El Paso Pipe and Supply Co. v. Mountain States Leasing, Inc., 617 S.W.2d 189, 190 (Tex.1981); De La Rosa v. Vasquez, 748 S.W.2d 23, 25 (Tex.App.--Amarillo 1988, no writ).

The "Motion to Vacate Judgment and Dismiss Action" does not contain the requisites of a bill of review. Therefore, we may not treat the motion as such. Bridgman v. Moore, 143 Tex. 250, 183 S.W.2d 705, 706 (1944); LaBarba v. Eubanks, 227 S.W.2d 884, 885 (Tex.Civ.App.--Waco 1950, no writ). Because Hicks did not proceed By his second point of error, Hicks contends that the trial court erred in failing to dissolve the writ of garnishment because the default judgment had become dormant under Tex.Civ.Prac. & Rem.Code Ann. § 31.006 (Vernon 1986) and would not support issuance of the writ of garnishment. Resolving this point of error requires us to construe Tex.Civ.Prac. & Rem.Code Ann. § 34.001 (Vernon 1986) together with section 31.006.

by bill of review, his point of error presents nothing for review. Hildyard v. Fannel Studio, Inc., 547 S.W.2d 332, 338 (Tex.Civ.App.--Corpus Christi 1977, writ ref'd n.r.e.). Hicks' first point of error is overruled.

Section 31.006 is a revision and codification of former Tex.Rev.Civ.Stat.Ann. art. 5532 (repealed 1985). Section 31.006 provides as follows:

If execution has not issued within 12 months after the date of the rendition of a judgment in a court of record, the judgment may be revived by scire facias or by an action of debt brought not later than 10 years after the date of the rendition of the judgment.

Section 34.001 is a revision and codification of former Tex.Rev.Civ.Stat.Ann. art. 3773 (repealed 1985). Section 34.001 provides as follows:

(a) If a writ of execution is not issued within 10 years after the rendition of a judgment of a court of record or a justice court, the judgment is dormant and execution may not be issued on the judgment unless it is revived.

(b) If a writ of execution is issued within 10 years after rendition of a judgment but a second writ is not issued within 10 years after issuance of the first writ, the judgment becomes dormant. A second writ may be issued at any time within 10 years after issuance of the first writ.

An apparent conflict exists between the two statutes concerning when a judgment becomes dormant. Section 31.006 states, "If execution has not issued within 12 months ... the judgment may be revived ...," implying that a judgment becomes dormant after 12 months if no execution has issued, while Section 34.001 states, "If a writ of execution is not issued within 10 years ... the judgment is dormant...."

The same conflict existed between the predecessor statutes, arts. 5532 and 3773. The conflict was resolved in Cox v. Nelson, 223 S.W.2d 84 (Tex.Civ.App.--Texarkana 1949, writ ref'd). The court traced the history of the statutes, concluding that art. 3773 was controlling and that a judgment remained valid for 10 years after rendition. By its outright refusal of the application for writ of error, the Supreme Court endorsed the principles of law declared in Cox v. Nelson. See Tex.R.App.P. 133(a).

The case of Allied Finance Co. v. Kelly, 317 S.W.2d 790 (Tex.Civ.App.--Waco 1958, writ dism'd w.o.j.) relied upon Cox v. Nelson to uphold issuance of a writ of garnishment. In Kelly, more than 12 months, but less than 10 years, had passed after rendition of the judgment without issuance of a writ of execution. The defendant argued that the judgment had become dormant under art. 5532 and would not support issuance of a writ of garnishment. The court cited Cox v. Nelson and held that the judgment had not become dormant by virtue of art. 3773. 317 S.W.2d at 793-94.

As noted earlier, sections 31.006 and 34.001 are revisions and codifications of arts. 5532 and 3773. Under the statutory revision program prescribed by the Legislature, the Texas Legislative Council may not alter the sense, meaning, or effect of a statute. Tex. Gov't Code Ann. § 323.007(b) (Vernon 1988). The revision and codification of arts. 5532 and 3773 did not alter the meaning or legal effect of the statutes, and decisions construing arts. 5532 and 3773 remain viable precedent for construction of sections 31.006 and 34.001.

We conclude that section 34.001 is controlling over section 31.006. The default judgment remains valid for 10 years after rendition. Issuance of the writ of garnishment was therefore supported by a valid and subsisting judgment and the trial court properly refused to dissolve the writ. Hicks' second point of error is overruled.

The judgment of the trial court is affirmed.

ON MOTION FOR REHEARING

Hicks has filed a motion for rehearing. By his first point of error, he contends that we erred in holding that he failed to preserve error concerning his theory of abandonment. By his second, third, and fourth points of error, he contends that we erred in holding that Tex.Civ.Prac. & Rem.Code Ann. § 34.001 (Vernon 1986) is controlling over Tex.Civ.Prac. & Rem.Code Ann. § 31.006 in determining when a judgment becomes dormant. We will overrule the motion for rehearing.

Advancing his first point of error, Hicks notes that Middleton v. Murff, 689 S.W.2d 212, 213 (Tex.1985) provides an exception to the requirement of a bill of review under Tex.R.Civ.P. 329b(f) for cases in which the court rendering the judgment had no jurisdictional power to do so. Hicks reasons that, under his "doctrine of abandonment," the trial court was deprived of jurisdictional power to render the default judgment. Therefore, his "Motion to Vacate Judgment and Dismiss Action" was an appropriate procedural vehicle to attack the default judgment. We conclude that the doctrine of abandonment no longer obtains in Texas, and that the trial court could not lose jurisdictional power as a result of the bank's inaction.

Hicks cites an old line of cases for the proposition that a trial court automatically loses jurisdiction over the subject matter of a case when the plaintiff fails to prosecute the case with diligence. ¹ The loss of subject matter jurisdiction, Hicks contends, would be sufficient to deprive the trial court of jurisdictional power as that term has been defined by Murff and Deen v. Kirk, 508 S.W.2d 70, 72 (Tex.1974).

The cases relied upon by Hicks applied the common-law doctrine of discontinuance, which automatically terminated lawsuits for failure to prosecute with diligence. A different rule was applied to suits in equity....