Reynolds v. Kessler

• Decision Date: 28 March 1984
• Docket Number: No. 08-82-00234-CV,08-82-00234-CV
• Citation: 669 S.W.2d 801
• Parties: Lester A. REYNOLDS and Altha L. Reynolds, Appellants, v. Calvin K. KESSLER, Appellee.
• Court: Texas Court of Appeals

Page 801

669 S.W.2d 801

Lester A. REYNOLDS and Altha L. Reynolds, Appellants, v. Calvin K. KESSLER, Appellee.

No. 08-82-00234-CV.

Court of Appeals of Texas El Paso.

March 28, 1984.

William J. Mounce, Risher S. Gilbert, Grambling, Mounce, Sims Galatzan & Harris, El Paso, Robert F. Bourk, Oklahoma City, Okl., for appellants.

Myron D. Brown, Scott, Hulse, Marshall, Feuille, Finger & Thurmond, El Paso, for appellee.

Before STEPHEN F. PRESLAR, C.J., and WARD and SCHULTE, JJ.

OPINION

SCHULTE, Justice.

This case began in July, 1980, as a suit by Kessler to remove the cloud of Reynolds' purported federal judgment lien from Kessler's title to certain El Paso realty. Reynolds countersued for foreclosure of his lien. The trial court, hearing the case without a jury, decreed a removal of the cloud and denied Reynolds' foreclosure. Altha L. Reynolds was dismissed from the law suit below. We affirm.

Kessler and Charlie Dennis owned rental realty as tenants in common. Kessler sued Dennis in El Paso County. Kessler obtained judgment against Dennis and bought the one-half interest of Dennis at the Sheriff's sale under execution. Kessler received the Sheriff's deed dated November 8, 1976. On the prior October 23, 1975, Reynolds had taken judgment against Dennis in still another case in a federal court in Arkansas. Reynolds' judgment resulted from his third-party action against Dennis in the federal suit which was originally styled John Hancock Mutual Life Insurance Company v. Reynolds and Dennis. Reynolds had an exemplified copy of that judgment against Dennis filed in the deed records in the office of the El Paso County Clerk on December 2, 1975. On April 23, 1976, Reynolds registered the same Arkansas federal judgment with the Federal District Court for the Western District of Texas and on June 15, 1976, filed the abstract with the El Paso County Clerk for recording in the judgment record of El Paso County. The county clerk indexed the judgment in the alphabetical index to such judgment records, as will hereafter be further developed. The Sheriff's deed to Kessler, previously mentioned, recited that Kessler took subject to, and not assuming, "an abstract of judgment dated April 23, 1976, against Charlie Dennis and in favor of John Hancock Mutual Life Insurance Company."

The trial court filed findings of fact and conclusions of law in addition to its judgment. The judgment recites that Reynolds failed to perfect a judgment lien under Articles 5447 and 5448, infra, prior to Kessler's purchase of the Dennis interest at Sheriff's sale. The court further found that even if perfected, its enforcement was barred by the three-year statute of limitations under Article 5507, infra, and Kessler had acquired title by adverse possession. The court quieted Kessler's title and declared the Reynolds purported lien invalid against the property in question.

In four points of error, Reynolds asserts that it was error for the trial court to apply Articles 5447 and 5448, infra, since their application under the facts would be unconstitutional under federal law; that there was no evidence to support the court's finding that Kessler held adversely to Reynolds under Article 5507, infra; that Articles 5447 and 5448, infra, did not apply to Reynolds' federal lien; and that the court erred in finding Reynolds did not properly perfect his lien and in finding that the lien was not properly indexed.

We will combine our discussion of Points One, Three and Four which principally concern Articles 5447, 5448 and 5451, Tex.Rev.Civ.Stat.Ann. and their interplay with 28 U.S.C. 1962 and 28 U.S.C. 1963. Article 5447 entitled "Abstract of judgments" provided in pertinent part:

Each clerk of a court, when a person in whose favor a judgment was rendered, ... applies therefor, shall make out, certify ... and deliver to such applicant ... an abstract of judgment showing:

(1) The names of the plaintiff and of the defendant in such judgment;

(2) The birthdate and drivers' license number of the defendant, if available to the clerk of the court;

(3) The number of the suit in which the judgment was rendered;

(4) Defendant's address if shown in suit, ... and, if not, the nature of citation and the date and place citation was served;

(5) The date when such judgment was rendered;

(6) The amount for which the judgment was rendered and the balance due thereon; and (7) The rate of interest specified in the judgment ....

Article 5448, entitled "Recording judgments," in pertinent part provided:

Each county clerk shall keep a well bound book called the "judgment record," and he shall immediately file and therein record all properly authenticated abstracts of judgment when presented to him for record, noting therein the day and hour of such record. He shall at the same time enter it upon the alphabetical index to such judgment record, showing the name of each plaintiff and of each defendant in the judgment, and the number of the page of the book upon which the abstract is recorded ....

Article 5451, entitled "Federal court judgments," provided in pertinent part:

An abstract of a judgment rendered in this State by any United States Court may be recorded and indexed in the same manner and with like force and effect as provided for judgments of the Courts of this State, upon the certificates of the clerks of such United States courts.

28 U.S.C. 1962, entitled "Lien," provides in pertinent part:

Every judgment rendered by a district court within a State shall be a lien on the property located in such State in the same manner, to the same extent and under the same conditions as a judgment of a court of general jurisdiction in such State, .... Whenever the law of any State requires a judgment of a State court to be registered, recorded, docketed or indexed, or any other act to be done, in a particular manner, or in a certain office or county ... before such lien attaches, such requirements shall apply only if the law of such State authorizes the judgment of the United States to be registered, recorded, docketed or otherwise conformed to the rules and requirements relating to judgments of the courts of the State.

28 U.S.C. 1963, entitled "Registration in other districts," reads in pertinent part:

A judgment ... for the recovery of money ... now or hereafter entered in any district court ... may be registered in any other district by filing therein a certified copy of such judgment. A judgment so registered shall have the same effect as a judgment of the district court of the district where registered and may be enforced in like manner.

In applying the above cited provisions of Article 5447 to the facts before us, we consider first the abstract of the Reynolds judgment dated April 23, 1976. In identifying the parties, John Hancock Life Insurance Company is identified as the plaintiff. However, it goes on to recite that, "the Defendants, LESTER A. [sic] REYNOLDS ... recovered judgment against THIRD PARTY DEFENDANTS CHARLES E. DENNIS ...." It contains no reference to birth dates or drivers' license number. The number of the suit in which judgment was originally rendered in the Arkansas federal court is not shown. However, it does show the El Paso federal district court number as "Cause No. EP 76 MISC 8." It contains neither addresses of defendants or third party defendants nor anything regarding citations. It does not show the date the original judgment was rendered in Arkansas. The date of rendition shown is the date of registration in the El Paso court, that is, April 23, 1976. In reciting the amount of the judgment, it omits $4,000.00 court costs and attorneys fees and does not set forth the rate of interest specified in the judgment.

We need consider just two of the deficiencies of the abstract. The failure of the abstract to state the date of the judgment, standing alone, is fatal to the creation of a lien. Rushing v. Willis, 28 S.W. 921 (Tex.Civ.App.1894, no writ). The rate of interest specified in the judgment must be shown in order to comply with the statute. Midland County v. Tolivar's Estate, 137 Tex. 600, 155 S.W.2d 921 (1941). It is obvious that the abstract in question herein neither strictly nor substantially complied with Article 5447. The trial court so found. Since a judgment lien is purely statutory the statute must be substantially complied with before the lien will attach. Womack v. Paris Grocer Co., 166 S.W.2d 366, 368 (Tex.Civ.App.--Galveston 1942), writ ref'd, 140 Tex. 423, 168 S.W.2d 645 (1943).

As to the alphabetical indexing under Article 5448, the county clerk indexed both direct and reverse. Reynolds' name appears once in the direct index as DF (Defendant). Dennis' name likewise appears once in the direct column as DF (Defendant). As to each of those two entries, opposite in the reverse column, John Hancock Mutual Life Insurance Company is shown as PF (Plaintiff). In the reverse column both Reynolds and Dennis are shown as DF (Defendant) and opposite in the direct column, John Hancock Mutual Life Insurance Company is shown as PF (Plaintiff). Nowhere does the index reflect Reynolds as plaintiff and Dennis opposite as defendant.

The names of each party to the judgment, both plaintiff and defendant, must appear in the index in alphabetical order to effectuate a judgment lien. McGlothlin v. Coody, 59 S.W.2d 819 (Tex.Com.App. Sec. B 1933, judgment adopted); Guaranty State Bank of Donna v. Marion County National Bank, 293 S.W. 248 (Tex.Civ.App.--San Antonio 1927, no writ); Cheatham v. Mann, 133 S.W.2d 264 (Tex.Civ.App.--Galveston 1939, writ ref'd); Barton v. Parks, 127 S.W.2d 376 (Tex.Civ.App.--Galveston 1939, writ ref'd). The names of all the parties to the judgment must appear alphabetically in the index, direct and reverse. The court in J.M. Radford Grocery Co. v. Speck, 152 S.W.2d 787 (Tex.Civ.App.--Amarillo 1941, writ ref'd) in this regard stated in part "that the requirements of the statutes in this respect are mandatory before a judgment...