Koenig v. Marti

• Decision Date: 05 March 1937
• Docket Number: No. 13512.,13512.
• Parties: KOENIG v. MARTI et al.
• Court: Texas Court of Appeals

Page 1023

103 S.W.2d 1023

KOENIG v. MARTI et al.

No. 13512.

Court of Civil Appeals of Texas. Fort Worth.

March 5, 1937.

Rehearing Denied April 16, 1937.

Error from County Court at Law No. 1, Tarrant County; David McGee, Judge.

Action by Mrs. Retta Marti and J. M. Marti, her husband, against Theo Koenig and John L. Poulter. From the judgment, defendant Theo Koenig appeals, and plaintiffs present cross-assignments of error.

Affirmed in part, reversed and remanded with instructions in part.

R. C. Fuller, M. Kleberg, and Greines & Greines, all of Fort Worth, for appellant.

A. B. Curtis and J. E. Dycus, both of Fort Worth, for appellees.

SPEER, Justice.

On July 8, 1925, C. C. Evatt and G. W. Maeyers recovered a judgment against Theo Koenig and John L. Poulter, in the county court at law No. 2, Tarrant county, Tex., for the sum of $257, with interest thereon from its date at the rate of 10 per cent. per annum and for costs of suit.

On July 5, 1935, Mrs. Retta Marti, joined pro forma by her husband, J. M. Marti, instituted this suit in the county court at law No. 1, of Tarrant county, Tex., against Theo Koenig and John L. Poulter for $555.55, alleging that she, the said Retta Marti, had, for a valuable consideration, purchased said judgment theretofore rendered against the defendants, and procured written assignments thereof. Her petition sufficiently describes the judgment. She averred the judgment had not been paid in whole or in part, and that it was still in full force and effect; that it had never been reversed or otherwise vacated. That she was "the legal and equitable owner and holder of the indebtedness accruing by virtue of said judgment, and because thereof the defendants were justly indebted and obligated, jointly and severally to pay to plaintiff the sum of $555.55, with interest thereon from the date of the filing of the petition at the rate provided in the judgment."

On the same date of the filing of plaintiff's petition, she caused to be issued and executed a writ of attachment upon property of the defendant Koenig. The return of the officer shows that he seized under the writ lots 1, 2, 3, 4, 5, 6, 7, and 8, all in block "L" of the Fields Hillside addition to the city of Fort Worth, Tex.

Defendant Koenig filed a plea to the jurisdiction of the court in which he contended the action was in effect one to revive a dormant judgment, and should have been instituted in the county court at law No. 2, in which the judgment was rendered, and that the court in which this action was then pending had no jurisdiction thereof.

Thereafter, on October 11, 1935, Mrs. Retta Marti, joined by her husband, J. M. Marti, by leave of court, filed a first amended petition in lieu of their petition filed on July 5, 1935, similar in all respects to the original petition, except that the husband is made a party plaintiff and explanatory facts are set out as to the nature of the indebtedness upon which the original judgment was rendered, repeating the former allegations that "heretofore by instruments in writing duly executed by the said C. C. Evatt and G. W. Maeyers for a valuable consideration to them paid by plaintiff, Mrs. Retta Marti," and added in the new plea "out of her own separate funds and estate, sold, transferred and assigned said judgment together with all interest and costs due thereon unto plaintiff, Mrs. Retta Marti, as her separate property," who is now the legal and equitable owner and holder of said indebtedness accruing by virtue of said judgment, "as her separate property." Prayer was the same as in the original petition.

On October 22, 1936, defendant Koenig filed his amended plea in abatement to the sufficiency of the application for the writ of attachment issued prior to the filing of plaintiffs' amended petition urging, among other things, that the attachment proceedings were void for the reason plaintiffs' original petition and asserted cause of action were insufficient to support the writ in that the petition was by Mrs. Marti alone, she being a married woman. The court sustained the plea by a judgment reciting "for the reasons set out therein." The plaintiffs excepted to the action of the court.

Defendant Poulter filed a general demurrer, general denial, and certain special defenses which are unnecessary to set out here.

Defendant Koenig answered by general denial and specially that the plaintiff was not the owner of the judgment sued on, either at the time of filing her original or amended petitions, but that the codefendant John L. Poulter was in fact the real owner thereof; that the amended petition set up a new cause of action; and that on October 11, 1935, when the amended petition was filed, the judgment was more than ten years old and barred by the statutes of limitation.

The case was tried to a jury, and upon concluding the testimony, defendant Koenig presented and requested the giving of a peremptory instruction to the effect that Mrs. Retta Marti was not the legal holder and owner of the judgment sued on; this being refused by the court, Koenig requested the submission of the following special issue:

"Do you find from a preponderance of the evidence that the plaintiff Mrs. Retta Marti is the legal owner and holder of the judgment sued upon in this case?"

The requested issue was refused, whereupon the court instructed the jury as follows:

"You are instructed to find that the plaintiff Mrs. Retta Marti is the legal owner and holder of the judgment sued upon in this case. The form of your verdict will be as set out below. * * * We the jury find that the plaintiff Mrs. Retta Marti is the legal owner and holder of the judgment sued upon in this case."

The court entered judgment quashing the writ of attachment theretofore issued and taxed the cost of that branch of the case against the plaintiff, and found that plaintiff acquired the judgment by an assignment from each of the original owners, the one from C. C. Evatt, on July 5, 1935, and the other from G. W. Maeyers, on the 13th day of July, 1935; that the judgment was barred by limitation when she acquired the Maeyers' assignment and therefore found in favor of plaintiff for $294.34 as one-half of the judgment sued on, together with all costs except that incurred by the attachment proceedings. Theo Koenig and the plaintiff excepted to the judgment and both gave notice of appeal. Koenig has perfected his appeal and presented proper assignments of error, while plaintiff has presented cross-assignments.

The propositions presented by appellant (defendant Koenig below) may be discussed under three general heads, they being (1) a suit on judgment such as the one at bar, is the same as an action to revive a dormant judgment and must be brought in the court where the original judgment was rendered. (2) Suit by a married woman alone for recovery of community property, is a nullity and will not toll the statutes of limitation. And (3) there was such a conflict in the testimony as to the ownership of the judgment sued on as to make an issue of fact for determination by the jury, and a refusal to submit such an issue constituted error.

Appellee (plaintiff below) presents two cross-assignments of error to the effect that (a) the court erred in holding one-half of the judgment owned by appellee was barred by limitation and (b) the court erred in sustaining appellant's plea in abatement to the attachment proceedings.

We cannot agree with appellant's contention that this is a suit, only, to revive a dormant judgment and that the action should have been brought in the same court where the original judgment was rendered. If it had been an action on scire facias to revive a dormant judgment and for execution thereon, then the county court at law No. 2 of Tarrant county would have had the exclusive jurisdiction of the case, but it being a suit to recover for debt due on a dormant judgment, then any court having jurisdiction of the amount in controversy and of the parties may determine the issue.

Article 5532, Rev.Civ.Statutes, provides that where execution has not issued within twelve months after the rendition of a judgment, it may be revived in either of two ways, that is, by scire facias or by action of debt thereon. These remedies must be enforced within ten years from the date of the judgment. It may be said that either remedy is one for revival (Ater v. Knight [Tex.Civ.App.] 218 S.W. 648), but clearly the appellee by her petition chose to bring suit for debt, and the county court at law No. 1, of Tarrant county, had jurisdiction.

It is said in 26 Tex.Jur. p. 479, § 620:

"An action for debt brought on a judgment, in contradistinction to a scire facias proceeding, may be filed in any court having jurisdiction of the subject matter and person of the defendant; it is not necessary to bring it in the court which rendered the judgment," citing Burge v. Broussard (Tex.Civ.App.) 258 S.W. 502, writ of error refused.

Appellant is very insistent upon his propositions grouped by us in No. 2 above, claiming the suit instituted by appellee, joined pro forma by her husband, was a nullity and did not toll limitation on the judgment prior to the filing of her amended pleadings, in which her husband joined, after the judgment was barred. Many cases are cited in support of his contention. We have carefully read these authorities and do not consider them in point under the condition of the record before us. It is well settled, we think, and the authorities cited by appellant so hold, that a married woman cannot prosecute a suit for the recovery of either her separate or community property without proper allegations showing her right to do so. But it does not follow that she could not maintain a suit involving her rights in property under any conditions. Speer's Marital Rights, §§ 501 and 510.

The distinction between the cases cited by appellant and the one before us lies in the fact that here the appellee by amendment met the defects in her...