Parks v. Young

• Decision Date: 03 December 1889
• Citation: 12 S.W. 986
• Court: Texas Supreme Court
• Parties: PARKS <I>v.</I> YOUNG.

12 S.W. 986

PARKSv.

YOUNG.

Supreme Court of Texas.

December 3, 1889.

Appeal from district court, Ellis county; ANSON RAINEY, Judge.

Attachment by O. F. Parks against M. Young on open account, defendant pleading in reconvention for wrongful and malicious attachment. Plaintiff appeals from a judgment for defendant.

A. A. Kemble, for appellant. Grace & Templeton, for appellee.

GAINES, J.

Appellant sued appellee on an open account for $533.25, and caused a writ of attachment to issue against his property. Appellee pleaded in reconvention, alleging that the attachment was wrongfully and maliciously sued out, and claimed damages both actual and exemplary. The defendant's property levied upon by virtue of the writ was sold by order of the judge, and the fund, amounting to $556, was paid into the hands of the clerk of the court. The plaintiff, in order to reach the surplus which would have remained after paying his original cause of action, filed a supplemental petition, alleging that since the institution of the suit he had recovered a judgment against the defendant in a justice's court for the sum of $135.60, and that the defendant had no other effects, except that fund, from which he could obtain satisfaction of his judgment, and prayed that the surplus be applied to the payment of that indebtedness. In the same pleading he admitted that he had collected since the commencement of his action, from collaterals placed in his hands by defendant to secure his indebtedness, the sum of $107.80.

The court sustained an exception to so much of the supplemental petition as asked a recovery upon the judgment; and in this there was no error. We know of no authority for bringing a second action upon a judgment that is not dormant. In the district court, such a suit has been permitted, in order to establish a lien that had been lost; but even that practice would hardly now be allowed, since existing statutes provide for fixing a lien by filing an abstract of the judgment. A defendant should not be subjected to the costs of a second suit, on a judgment upon which execution may issue. Besides, the courts do not sit to do a futile act. It is quite too plain for argument that a party cannot by amendment set up an additional cause of action in an attachment suit, and thereby acquire a lien upon the property attached to secure its payment. It matters not that the defendant may be insolvent. There are no equities which will enable a plaintiff to extend the lien acquired by the levy of a writ of attachment over an indebtedness not embraced in the writ.

After the exceptions to the cause of action attempted to be set up in the supplemental petition had been sustained, the defendant admitted the plaintiff's cause of action stated in his original petition, less the credit allowed in the supplemental petition, and moved the court to allow him the opening and conclusion in the introduction of evidence, and in argument upon his cross-action. The court correctly granted the...