Noble v. Barner

• Decision Date: 02 December 1899
• Citation: 55 S.W. 382
• Parties: NOBLE et al. v. BARNER.<SMALL><SUP>1</SUP></SMALL>
• Court: Texas Court of Appeals

55 S.W. 382

NOBLE et al. v. BARNER.¹

Court of Civil Appeals of Texas.

December 2, 1899.

Appeal from district court, Dallas county; W. J. J. Smith, Judge.

Action by David P. Barner against the firm of Noble & Hall. From a judgment for plaintiff, defendants appeal. Affirmed.

Dickson & Moroney, for appellants. Coke & Coke, for appellee.

BOOKHOUT, J.

Appellee, David P. Barner, instituted this suit on June 5, 1899, against Noble & Hall, a firm composed of O. Noble and L. H. Hall, and Ben E. Cabell, sheriff of Dallas county, Tex., to restrain the sale of certain property in Dallas county, levied on under an execution issued on a judgment rendered in the county court of Dallas county, Tex., in cause No. 2,676, in favor of Noble & Hall against L. W. Savage, on August 5, 1885, and an abstract of which judgment Noble & Hall claimed had been duly recorded and indexed in Dallas county, Tex., on November 8, 1889. It was alleged that L. W. Savage had acquired the property levied on prior to 1892; that he had conveyed it by mesne conveyances to plaintiff, who was the owner thereof. Plaintiff alleged that the record of the abstract of said judgment and the indexing thereof were insufficient to create a lien, because: (1) The index under the letter "H" was insufficient; (2) the amount due on the judgment at the time of its record was not correctly given, a credit of $50 paid on October 27, 1885, not being allowed; and (3) that the abstract of judgment failed to show in whose favor the judgment was rendered. The defendants, Noble & Hall, in their answer, after a general denial, specifically alleged the recovery by them of the judgment against L. W. Savage, and that on November 8, 1889, an abstract thereof was duly recorded and indexed in Dallas county, Tex. B. E. Cabell, sheriff, filed a general demurrer and general denial. The case was tried on July 17, 1899, without a jury. The court held that the abstract and indexing were insufficient to create a lien, and gave judgment for the plaintiff. From this judgment Noble & Hall appealed.

Conclusions of Fact.

It was undisputed that Noble & Hall recovered a judgment against L. W. Savage as mentioned in the pleadings; that this judgment had never become dormant, and that under an execution issued thereon, the lots described in plaintiff's pleadings had been levied on and advertised; that these lots had been acquired by L. W. Savage prior to 1892, and afterwards conveyed to plaintiff; that $50 was paid upon the Noble & Hall judgment on October 19, 1885, and $50 on October 27, 1885. The only disputed issues related to the abstract of judgment, its record and indexing. The record relating to the abstract of the judgment was in volume 2, p. 211, of the Records of Abstracts of Judgments of Dallas County, Tex. Upon the three questions raised by plaintiffs, the evidence was as follows: (1) The indexing is shown in full on page 12 of the record. Under the letters "S" and "N" the defendant's name and the names of both plaintiffs are given correctly. Under the letter "H" the names of both plaintiffs are given correctly, but the surname of the defendant is given as "Hall" instead of "Savage." Under each of the said letters the proper page of the record is given. (2) The record of the abstract of judgment states the amount due at the date of record to be $529.18, principal and interest, and $7.60 costs; making $536.78 in all. Under the column of credits in the judgment record, $50 is stated as having been paid on October 27, 1889. The original abstract correctly shows the date of this credit to be October 27, 1885. The amount actually due on the judgment when the abstract was recorded was $536.78, allowing the $50 as paid on October 27, 1885, the correct date. (3) The suit in which Noble & Hall obtained judgment was entitled "No. 2,676. Noble & Hall vs. L. W. Savage." The record of the abstract of judgment as "O. Noble and L. H. Hall, composing the firm of Noble & Hall," and the defendant's name as "L. W. Savage."

The appellants, under their first assignment of error present the following proposition: "The index of an abstract of judgment is sufficient if, under the letter beginning the name of the defendant in judgment, it correctly gives his name and the name of each plaintiff, and if, under the letters beginning the names of each plaintiff, the plaintiffs' names are correctly given." The statute requires that, when an abstract is filed for record, the clerk shall immediately record the same in the judgment record, noting in such record the day and year of such record, and shall also at the same time enter it upon the index. Sayles' Civ. St. art. 3287. It is further provided by article 3288 that the index to such...