McIntire v. Sawicki
| Decision Date | 26 January 1962 |
| Docket Number | No. 3665,3665 |
| Parties | Mrs. Agnes McINTIRE et vir, Appellants, v. Felix James SAWICKI et ux., Appellees. |
| Court | Texas Court of Appeals |
Bernard Kay and Robert L. Jones, Houston, for appellants.
Delange, Hudspeth & Pitman, Houston, for appellees.
Mrs. Agnes McIntire, joined by her husband, J. O. McIntire, filed suit against Felix James Sawicki and wife Dan Sawicki to foreclose a judgment lien against a house and lot in the City of Houston.
In a non jury trial, judgment was rendered for defendants. The McIntires have appealed contending the court erred (1) in holding that the Sawickis were bona fide purchasers, (2) in holding the abstract of judgment was insufficient to fix a lien against said property, (3) in failing to find the acknowledgment defective in the deed from Monger to Sawicki, (4) in failing to hold certain requests for admissions confessed because of a defective affidavit to the reply, (5) in finding that the $750.00 paid by Richardson to McIntire was part payment of said judgment, and (6) in finding that the property in controversy constituted the homestead of Frank Monger and wife.
Before this case was filed, the McIntires filed suit against Frank Munger and John H. Richardson, seeking to recover against Munger on a promissory note and against Richardson as transferee of certain stock from Munger without having complied with the Bulk Sales Act. Richardson filed a plea of privilege which was sustained. Thereafter on November 23, 1951, judgment was rendered for the McIntires against Frank Munger for $6,997.66.
On April 2, 1952, the McIntires collected $750.00 from Richardson which amount was to be applied on the judgment. On May 29, 1952, an abstract of judgment was issued on the McIntire judgment against Frank Munger for $6,997.66, which revealed no credit on the judgment. The abstract was indexed under the name of 'Munger, Frank', as the defendant in judgment and Mrs. Agnes McIntire and J. O. McIntire as plaintiffs. On May 10, 1956, Frank Monger and wife conveyed the property to the Sawickis. Said property had theretofore been conveyed to Frank A. Monger and wife Annie Monger. The McIntires' judgment was against Frank Munger. As shown by his birth certificate Frank Munger's correct name is Frank Augustus Monger. He was married under the name of Monger, his children are known as Monger, they are enrolled in school under the name of Monger and their birth certificates are in the name of Monger. Mrs. Monger testified that she had never used the name Munger. However, it is conceded that the judgment debtor and owner of the property in controversy are one and the same man. The name appearing in the abstract of judgment, however, was not the name of the owner of the property.
Among other things, an abstract of judgment must show the amount of the judgment and the balance due thereon and the name of the defendant in such judgment. Art. 5447, Vernon's Annotated Civil Statutes. We hold the abstract of judgment did not create a lien against the property in controversy (1) because the judgment was against 'Frank Munger' and the record title to the property was in the...
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Gary E. Patterson & Associates v. Holub
...S.W. 510, 511 (1892); Askey v. Power, 36 S.W.2d 446, 447 (Tex. Comm'n App.1931, holding approved); McIntire v. Sawicki, 353 S.W.2d 952, 953 (Tex.Civ.App.-Eastland 1962, writ ref'd n.r.e.); Tex. Building & Mortgage Co. v. Morris, 123 S.W.2d 365, 368 (Tex.Civ.App.-Beaumont 1938, writ dism'd, ......
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Reaves v. Brooks, 7844
...under Rule 169, V.A.T.R. Durrett v. Boger, 234 S.W.2d 898 (Tex.Civ.App.--Texarkana, 1950, no writ); McIntire v. Sawicki, 353 S.W.2d 952 (Tex.Civ.App.--Eastland, 1962, writ ref'd n.r.e.). The trial court is lodged with some discretion in refusing to deem the questions as answered. Sanders v.......
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...states that the answers are true to the best of affiant's knowledge it is an insufficient affidavit. McIntire v. Sawicki, 353 S.W.2d 952 (Eastland Tex.Civ.App., 1962, ref., n.r.e.) and Taylor v. Owen, 290 S.W.2d 771 (San Antonio Tex.Civ.App., 1956, ref., In their second point and in their a......
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Guzman v. Carnevale
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Discovery
...Admissions qualified with the phrase, “to the best knowledge and belief,” are subject to being deemed admitted. McIntire v. Sawicki , 353 S.W.2d 952 (Tex. Civ. App.—Eastland 1962, writ ref’d n.r.e.). b. Bad Faith A request may be deemed admitted when a denial or refusal to admit or deny is ......
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Table of cases
...§37:2.B.1 McInnis v. Alamo Community College Dist. , 207 F.3d 276 (5th Cir. 2000), §§17:4.F.1, 21:7.A.1, 41:8 McIntire v. Sawicki , 353 S.W.2d 952 (Tex. Civ. App.—Eastland 1962, writ ref’d n.r.e.), §40:6.D.3.a McIntyre v. Lockheed Corp ., 970 S.W.2d 695 (Tex. App.—Ft. Worth 1998, no pet.), ......
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Discovery
...Admissions qualified with the phrase, “to the best knowledge and belief,” are subject to being deemed admitted. McIntire v. Sawicki , 353 S.W.2d 952 (Tex. Civ. App.—Eastland 1962, writ ref’d n.r.e.). b. Bad Faith A request may be deemed admitted when a denial or refusal to admit or deny is ......
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Table of cases
...§37:2.B.1 McInnis v. Alamo Community College Dist. , 207 F.3d 276 (5th Cir. 2000), §§17:4.F.1, 21:7.A.1, 41:8 McIntire v. Sawicki , 353 S.W.2d 952 (Tex. Civ. App.—Eastland 1962, writ ref’d n.r.e.), §40:6.D.3.a McIntyre v. Lockheed Corp ., 970 S.W.2d 695 (Tex. App.—Ft. Worth 1998, no pet.), ......