Huggins v. Johnston, 5118.

• Decision Date: 21 January 1931
• Docket Number: No. 5118.,5118.
• Citation: 35 S.W.2d 688
• Parties: HUGGINS v. JOHNSTON.
• Court: Texas Supreme Court

Page 688

35 S.W.2d 688

HUGGINS v. JOHNSTON.

No. 5118.

Supreme Court of Texas.

January 21, 1931.

Error to Court of Civil Appeals of Tenth Supreme Judicial District.

Suit by R. B. Johnston against W. M. Huggins. A judgment for plaintiff was affirmed by the Court of Civil Appeals [3 S.W.(2d) 937], and defendant brings error.

Affirmed.

Davis, Jester & Tarver, of Corsicana, for plaintiff in error.

Taylor & Howell, of Corsicana, for defendant in error.

CRITZ, C.

This suit was originally instituted in the district court of Navarro county, Tex., by R. B. Johnston, defendant in error, against W. M. Huggins, plaintiff in error.

The Court of Civil Appeals makes a very clear statement of the facts and issues of the case, and we refer to the opinion of that court for a full statement. 3 S.W.(2d) 937, 938. However, in order that this opinion may be complete within itself, we will briefly again state the issues in the case.

The suit was filed by R. B. Johnston against W. M. Huggins for an injunction to restrain Huggins from issuing, or causing to be issued, recording, or causing to be recorded, in Liberty or Chambers county, Tex., or elsewhere, an abstract of judgment on a certain judgment rendered in the district court of Navarro county, Tex., entitled "Schloss Bros. vs. W. M. Huggins and R. B. Johnston," and from issuing, or causing to be issued, any writ of garnishment or other process for the enforcement of said judgment as against Johnston or the Humble Oil & Refining Company, which is also made a party defendant by this suit.

The trial court filed conclusions of law and fact, and his findings of fact are fully supported by the record, and are set out in the opinion of the Court of Civil Appeals. We here reproduce such findings:

"That R. B. Johnston and W. M. Huggins, about 1916, signed a written guaranty for Crescent Clothing Company, guaranteeing a line of credit for said company to Schloss Bros., not to exceed $5,000, and that thereafter the Crescent Clothing Company went into bankruptcy. That the plaintiff, R. B. Johnston, and the defendant, W. M. Huggins, herein, as a result of said guaranty, executed their written promissory note in the sum of $4,000, * * * and made the same payable on demand, and then indorsed said note to Schloss Bros., to whom said guaranty had been previously given. That they thereafter defaulted in the payment of said note, and Schloss Bros. sued the makers of said note, R. B. Johnston and W. M. Huggins, the Crescent Clothing Company not being a party to said note, in the district court of Navarro county, Tex., same being No. 10653, and, upon service being had, said R. B. Johnston and W. M. Huggins wholly defaulted and judgment was rendered against them jointly and severally for the amount of the note. * * * R. B. Johnston and W. M. Huggins, as defendants in said suit, filed no pleadings whatsoever, and the court, in rendering judgment, rendered same against Johnston and Huggins jointly and severally, and the judgment in no wise provided for subrogation of either of said parties if they paid off said judgment. Execution was issued on said judgment and placed in the hands of the sheriff, but was never served and no return made thereon. While the execution was in the hands of the sheriff, J. A. Thompson purchased said judgment from Schloss Bros., * * * taking an assignment of said judgment from Schloss Bros. A few days thereafter J. A. Thompson * * * transferred said judgment to the Corsicana National Bank and gave said bank an assignment to the same. * * * A few days after the bank acquired said judgment, W. M. Huggins, the defendant herein, paid to said bank the full amount of said judgment, paying something over $4,700, and took from said bank an assignment and transfer of said judgment. The judgment records in the district court of Navarro county was not marked as satisfied at the time W. M. Huggins paid the bank the full amount of said judgment * * * and had the same transferred to him * * * R. B. Johnston had no property whatever and no lien of any kind existed securing said judgment, and none had attached by virtue of execution issued and abstract of judgment filed in Navarro county, Tex Said judgment was transferred to W. M. Huggins by said bank in the year 1920. W. M. Huggins brought no suit whatever against his codefendant in the original suit, R. B. Johnston, for subrogation or for contribution after he took an assignment of said judgment, and no abstract of judgment was filed in Chambers and Liberty county, where the land affected is located, until the year 1926, more than two years and more than four years after the defendant, Huggins, had taken a transfer of the judgment from the bank. In the summer of 1926, after the plaintiff in this case, R. B. Johnston, had acquired the property in question by inheritance from his mother, who had recently died, the defendant, W. M. Huggins, caused to be filed in...