Leonard v. Delta County Levee Improve. Dist. No. 2, 8214

• Decision Date: 05 February 1974
• Docket Number: No. 8214,8214
• Citation: 507 S.W.2d 333
• Parties: Obie P. LEONARD, Jr., et al., Appellants, v. DELTA COUNTY LEVEE IMPROVEMENT DISTRICT NO. 2 et al., Appellees.
• Court: Texas Court of Appeals

Page 333

507 S.W.2d 333

Obie P. LEONARD, Jr., et al., Appellants, v. DELTA COUNTY LEVEE IMPROVEMENT DISTRICT NO. 2 et al., Appellees.

No. 8214.

Court of Civil Appeals of Texas,

Texarkana.

Feb. 5, 1974.

Vic Anderson, Jr., Shannon, Gracey, Ratcliff & Miller, Fort Worth, for appellants.

Hardy Moore, Paris, for appellees.

PER CURIAM.

This is a suit for writ of mandamus. Obie P. Leonard, Jr., R. W. Leonard, Margery Ann Hodges and Martha Jane Anthony, appellants (plaintiffs) brought suit against appellees (defendants), Delta County Levee Improvement District No. 2, O. O. Woodard, Roy Emerson and Goebel Templeton, individually and collectively as the Levee Improvement District's supervisors; Delta County Commissioners' Court, C. C. Oliver, J. L. Routt, H. D. Clark, Jr., Robert Anderson, Troy E. Kern, individually and collectively, as the Delta County Commissioners' Court, to require appellees to assess, levy or collect delinquent taxes or new taxes to pay off judgment liens against the district, which liens were owned and held by appellants. Trial was before a jury, and the jury rendered a verdict in favor of appellees on all issues. The trial court entered its judgment that appellants take nothing and refused appellants' application for writ of mandamus. Appellants' motion for new trial was overruled and thereafter this appeal was duly perfected. Thirteen points of error are submitted for our consideration.

On July 23, 1919, the Delta County Commissioners' Court signed an order creating Delta County Levee Improvement District No. 2. Shortly afterwards, an election was held in which the voters of Delta County approved the issuance of bonds in the sum of One Hundred Twenty Thousand ($120,000.00) Dollars for the construction and maintenance of levees and other improvements in the district, and also approved the levying of a tax to pay the interest on the bonds and to provide a sinking fund for the retirement of the bonds at maturity. In the same year, the district issued bonds in the total sum of $120,000.00 in denominations of $1,000.00 each. Neither the principal nor the interest was paid on the bonds at maturity. Judgments were taken against the District by Elmer C. Smith and Fred F. Farrow on June 9, 1942, June 9, 1947, and January 15, 1951, in the District Court of Delta County for the respective sums of $35,022.17, $33,950.00, and $25,459.25. The judgments were ultimately assigned to appellants.

There is no issue in the case about the validity of the various assignments or that abstracts of judgment were properly issued, recorded and indexed.

The key issues in the case are whether or not the judgments had become dormant, whether the various writs of execution had been 'issued' within the meaning of Article 3773, Tex.Rev.Civ.Stats., and whether the doctrine of laches is applicable.

Article 3773, supra, provides the following:

'If no execution is issued within ten years after the rendition of a judgment in any court of record, the judgment shall become dormant and no execution shall issue thereon unless such judgment be revived . If the first execution has issued within the ten years, the judgment shall not become dormant, unless ten years shall have elapsed between the issuance of executions thereon, and execution may issue at any time within ten years after the issuance of the preceding execution.'

There is no question but that executions were actually obtained in each case within ten years after the rendition of each judgment, and subsequent executions were obtained within ten years after the preceding execution.

The evidence is undisputed that in Cause No. 4224 in the District Court of Delta County, appellants obtained a judgment for $35,022.17 on June 9, 1942, and that proper issuance of writs of execution was obtained on July 7, 1950, and February 11, 1966. Since the undisputed proof shows that these two writs of execution were delivered into the hands of the sheriff and returned 'mulla bona,' a presumption arises that the officer performed his duty with reference to the two writs of execution. Carpenter v. Probst, 247 S . W.2d 460 (Tex.Civ.App. San Antonio 1952, writ ref'd). There is no evidence to the contrary. The remainder of the writs of execution in the three district court cases (Causes Nos. 4224, 4524, and 4738) are in dispute. The evidence in connection with each writ of execution is virtually identical. The writs of execution were delivered to the sheriff of Delta County with instructions to return them 'nulla bona.' In each instance, some small investigation was made as to whether or not the district had any property and, upon...