Houston Chronicle Pub. Co. v. Bergman, 10706.

• Decision Date: 23 February 1939
• Docket Number: No. 10706.,10706.
• Citation: 128 S.W.2d 114
• Parties: HOUSTON CHRONICLE PUB. CO. v. BERGMAN et al.
• Court: Texas Court of Appeals

128 S.W.2d 114

HOUSTON CHRONICLE PUB. CO. v. BERGMAN et al.

No. 10706.

Court of Civil Appeals of Texas. Galveston.

February 23, 1939.

Rehearing Denied April 20, 1939.

Appeal from District Court, Brazoria County; M. S. Munson, Judge.

Proceeding between the Houston Chronicle Publishing Company and H. D. Bergman and others to determine whether a judgment lien acquired by the Houston Chronicle Publishing Company on May 8, 1933, was cut off by final judgment rendered against H. D. Bergman in a trespass to try title suit filed against him on May 4, 1933. From the judgment, the Houston Chronicle Publishing Company appeals.

Reversed and remanded with instructions.

Kayser, Liddell, Benbow & Butler and Hardway, Woodruff & Austin, all of Houston (Dwight H. Austin, of Houston, of counsel), for appellant.

Vinson, Elkins, Weems & Francis, of Houston, and Will Crews Morris, of San Antonio, for appellees.

A. D. Dyess, of Houston, for appellee R. V. Kliesing.

CODY, Justice.

On May 8, 1933, appellant obtained a judgment lien on the land belonging to appellee H. D. Bergman, situated in Brazoria County, consisting of 80 acres, by filing an abstract of judgment for record in the judgment records of Brazoria County. Four days prior to this — on May 4, 1933— appellee R. V. Kliesing had filed a petition in the district court of Brazoria County against Bergman in trespass to try title to this same 80-acre tract; and thereafter, on July 14, 1933, Kliesing obtained judgment in such suit for title and possession of such land. There is no evidence that, at the time appellant acquired its judgment lien against the 80-acre tract, i. e., on May 8, 1933, Bergman had been served with citation in said action brought against him by Kliesing; nor had Bergman answered or entered his appearance in such suit at such time. No lis pendens notice was ever filed in connection with such trespass to try title action, and appellant never at any time became a party to it, nor had notice of it until long after its termination. The question to be determined on this appeal is this, —was the judgment lien acquired by appellant in the 80-acre tract on May 8, 1933, cut off by the final judgment rendered against Bergman (who was the common source of title) in the trespass to try title suit filed by Kliesing on May 4, 1933? The correct interpretation of Art. 7391, R.S. 1925, will supply the correct answer to such question.

The article just referred to reads: "Any final judgment rendered in any action for the recovery of real estate shall be conclusive as to the title or right of possession established in such action upon the party against whom it is recovered, and upon all persons claiming from, through or under such party, by title arising after the commencement of such action." Now prior to the enactment in 1879 of what is now Article 7391 in the Revised Statutes of 1925, it was provided: "In all actions of trespass to try title to lands, commenced within the time limited by law, the plaintiff shall proceed with all convenient expedition to the trial of the same; and in case a verdict and judgment shall pass against him in such action, such verdict and judgment shall not be conclusive and definite against the plaintiff, but at any time within one year, the said plaintiff, or any person claiming under him, shall have a right to commence his action for the recovery of said lands, de novo, and prosecute the same in the manner and with the expedition before directed; but in case a verdict and judgment shall pass against such plaintiff, then such second verdict and judgment shall be final and conclusive on the part of every such plaintiff; * * *"

The foregoing statute took effect March 16, 1840, Acts 1840, p. 136. It was amended February 2, 1844, Acts 1844, p. 70, by Art. 5299, of Paschal's Dig. which added the provision that "the plaintiff shall have one year from the decision of said Supreme Court to bring a second action." These statutes remained in full force until amended in 1879 by what is now Article 7391. Hall v. Wooters, 54 Tex. 231.

It is difficult to understand how the framers of our trespass to try title action could ever have seen any possible justification for allowing a plaintiff to litigate a second time the same matter with the same parties, in the same court, after having a final judgment rendered against him. Such a practice violated the practice which is fundamental in the administration of justice that "interest rei publicae ut sit finis litium". Therefore, as "in all interpretations, the court shall look diligently for the intention of the Legislature, keeping in view at all times the old law, the evil and the remedy" (Sec. 6, Art. 10, R.S.1925), there can be no doubt that, by enacting...