Pickens v. Baker

• Decision Date: 21 September 1979
• Docket Number: No. 9012,9012
• Citation: 588 S.W.2d 406
• Parties: C. R. PICKENS and Wife, Babe Pickens, Appellants, v. T. L. BAKER, Appellee.
• Court: Texas Court of Appeals

Page 406

588 S.W.2d 406

C. R. PICKENS and Wife, Babe Pickens, Appellants, v. T. L. BAKER, Appellee.

No. 9012.

Court of Civil Appeals of Texas, Amarillo.

Sept. 21, 1979.

C. J. Humphrey, Amarillo, for appellants.

Ebelardo G. Lopez and John L. Owen, Asst. County Attys., Amarillo, for appellee.

COUNTISS, Justice.

This appeal is from a judgment denying various judgment creditors recovery against the Sheriff of Potter County for his alleged failure or refusal to levy upon and sell property of the judgment debtor subject to execution. We affirm the judgment of the trial court.

On April 18, 1978, C. R. Pickens and various other creditors, appellants here, recovered judgment against Hamlet Baptist Church, also known as Bible Baptist Temple, in the principal sum of $6,277.50 plus interest, court costs and attorney's fees. ¹ On May 25, 1978, the creditors obtained a writ of execution directing any Texas sheriff or constable to levy on and sell property of the church subject to execution sufficient to pay the judgment and costs. The writ was delivered to the Potter County Sheriff's Office on the same date. Shortly thereafter, a deputy sheriff went to the church and discussed the matter with the pastor who agreed to prepare an inventory of the church property for the Sheriff's use in determining which property was subject to execution.

The inventory was prepared and delivered to the deputy sheriff on June 6, 1978. It contained a list of personal and real property with notations as to various liens on the property, and a lengthy list of names of individuals who were described as "Lienholder Bondholders Under New Finance Program." The information on the inventory was made available to the creditors' counsel and on June 13, 1978, counsel directed the Sheriff to levy on the office equipment and a church bus. The inventory listed a lien to the North State Bank of Amarillo on the office equipment. The deputy sheriff who was handling the matter advised the creditors' counsel that he would have to "do some more checking" to determine whether the Sheriff's office could levy on the property. The Sheriff then sought and received from the County Attorney of Potter County an opinion dated June 20, 1978, outlining various areas of the law pertinent to the Sheriff's right to require an indemnity bond before levying execution. Thereafter, the Sheriff requested an indemnity bond, which the creditors failed to provide.

The first writ of execution expired, and the creditors' counsel asked the Sheriff's office to return it so that a new writ of execution could be issued. The first writ was returned nulla bona and on July 10, 1978, a new writ was issued. Various discussions continued between the Sheriff's personnel and the creditors' counsel concerning a levy on the office equipment and the Sheriff's request for an indemnity bond, but no levy was made and no bond was furnished. On July 31, 1978, the second writ was returned by the Sheriff's office nulla bona. Prior to that date, the office equipment had been repossessed by the North State Bank.

The case now before this court originated on August 4, 1978, when the creditors filed a motion against the Sheriff seeking recovery under Article 3825, Tex.Rev.Civ.Stat.Ann. (1966) for the amount of the judgment because of the Sheriff's failure to levy on the office equipment. ² Following a non-jury trial, judgment was entered for the Sheriff and the trial court filed findings of fact and conclusions of law supportive of its judgment.

The creditors bring forward twenty-one points of error which present three basic questions for decision by this court: First, under what circumstances may an officer require an indemnity bond from a judgment creditor before proceeding under a writ of execution; second, is there proper evidentiary support for the findings of fact of the trial court that justify the indemnity bond requested by the Sheriff in this case; and, third, is there an abuse of discretion by the trial court in permitting the Sheriff to file pleadings after the trial was in progress.

This case is founded on Article 3825, Tex.Rev.Civ.Stat.Ann. (1966) which states the potential liability of the Sheriff:

Should an officer fail or refuse to levy upon or sell any property subject to execution, when the same might have been done, he and his sureties shall be liable to the party entitled to receive the money collected on such execution for the full amount of the debt, interest and costs, to be recovered on motion before the court from which said execution issued, five days previous notice thereof being given to said officer and his sureties.

The right of a levying officer to require an indemnity bond was considered in depth in the case of Rankin v. Belvin, 507 S.W.2d 908 (Tex.Civ.App. Houston (14th Dist.) 1974, writ ref'd n.r.e.). In that case, the court reviewed the cases establishing the right, analyzed the various approaches to the problem and stated the correct rule as follows: ³

. . . Based on these decisions, we hold that a levying officer has the right to require an indemnity bond before levying execution when, as a matter of his discretion, he has a reasonable doubt as to the ownership of the property, the enforcibility of the judgment, or other matters affecting the propriety of the execution.

Rankin v. Belvin, supra, at 911.

It is important to remember that the discretion granted to the levying officer is limited to situations where he has "reasonable doubt" in one of the three areas specified. The discretion thus granted does not encompass liens on the property, for as stated in U. M. & M. Credit Corporation v. Doss, 452 S.W.2d 45, 48 (Tex.Civ.App. Dallas 1970, writ ref'd n.r.e.):

The mere fact that the property was mortgaged, if it was, did not justify the sheriff's failure to levy the writ. Doss may have had an equity in the property which would have been subject to execution. Smothers v. Field, Thayer & Co., supra. The officer was unauthorized to determine in advance whether the property would at public auction bring more or less than the amount of the prior liens. Burkett v. Simmons Hardware Co., 52 S.W.2d 675 (Tex.Civ.App., Waco 1932, no writ). His only duty was to levy the execution on the property, advertise it for sale and hold the sale in accordance with the law.

In the case before this court, therefore, the Sheriff's demand for an indemnity bond must be based on reasonable doubt within one of the three areas specified if his failure to levy on the office equipment is to be excused.

In its findings of fact, the trial court specifically found several times that the first ground existed, i. e., that the Sheriff entertained doubt as to the ownership of the office equipment. Those findings are attacked here by the creditors as being without support in the evidence or "so contrary to the overwhelming weight and preponderance of the evidence as to be clearly wrong and manifestly unjust."

In considering this problem area, we are guided by well settled rules of appellate review. The "no evidence" point presents a question of law that requires the appellate court to consider only the evidence and inferences tending to support the finding under attack and disregard all evidence and inferences to the contrary. Garza v. Alviar, 395 S.W.2d 821, 823 (Tex.1965). Our review of the evidence under the foregoing standard reveals testimony and an exhibit which provide some evidentiary support for the finding in question. The "no evidence" point is, therefore, overruled.

The "insufficiency" point, on the other hand, invokes a broader standard which requires this court to consider all of the evidence in order to determine whether the evidence supporting the finding is so weak, or the evidence to the contrary so overwhelming, that the finding should be set aside and a new trial ordered. Garza v. Alviar, supra. In considering...