Rich v. Smith

• Decision Date: 05 May 1972
• Docket Number: No. 17310,17310
• Citation: 481 S.W.2d 162
• Parties: Mary Belle RICH, Appellant, v. Earnest SMITH et ux., Appellees.
• Court: Texas Court of Appeals

Page 162

481 S.W.2d 162

Mary Belle RICH, Appellant, v. Earnest SMITH et ux., Appellees.

No. 17310.

Court of Civil Appeals of Texas Fort Worth.

May 5, 1972.

Rehearing Denied June 2, 1972.

Kearby Peery and Kenneth Johnson, Wichita Falls, for appellant.

Borden, Hand & Zellers, and James O. Mullin, Weatherford, for appellee.

OPINION

LANGDON, Justice.

This is an appeal by Mary Belle Rich, also known as Mrs. Louis C. Rich and as Mrs. Mary Belle Apple, from a judgment rendered in favor of Earnest Smith and Hattie E. Smith for the sum of $2,921.01, plus interest and costs and for injunctive relief.

In Cause No. 103448--E in the District Court of Dallas County, Texas, which was based upon a promissory note, judgment was rendered on May 1, 1958, for General Casualty of America against Earnest Smith, Hattie Elizabeth Smith and Mrs. Louis C. Rich in the amount of $5,124.66, at eight per cent per annum, plus $500.00 for attorney's fees, at six per cent per annum.

On December 19, 1961, Mrs. Rich, one of the judgment debtors in the Dallas County suit, paid General Casualty of America, the judgment creditor, the sum of $4,500.00, and was assigned the judgment rendered by the Dallas County Court. Under this record General Casualty of America has no remaining interest in said judgment.

In 1968, Mrs. Rich began to pursue her co-judgment debtors, the Smiths, by execution and garnishment, under the above judgment. Garnishment was levied upon accounts of the Smiths at the First National Bank of Jacksboro, and execution was made upon lands owned by Earnest Smith and Hattie Smith in Parker and Jack Counties.

In 1969, the Smiths filed this suit in the District Court of Jack County, Texas, seeking damages for wrongful execution and garnishment and for injunctive relief against further execution or garnishment proceedings.

Motions for summary judgment were filed first by Mrs. Rich and then by the Smiths. Judgment was granted in favor of the Smiths, except as to the amount of damages. After a brief jury trial on the question to damages, a verdict and judgment was rendered in the sum of $2,921.01 in favor of the Smiths. This appeal is from that judgment based upon four points of error. We affirm.

The appellant concedes that the principle of law relied upon by the trial court to the effect that payment of a judgment by one of the co-judgment debtors serves to extinguish such judgment is a correct statement of the law. The appellant, however, seeks to engraft an exception of this general rule if the co-judgment debtor pays less than the full face value of the judgment in taking an assignment thereof. The appellant bases this exception upon the holding in the case of Broadway Plan v. Ravenstein, 364 S.W.2d 741 (Fort Worth Civ.App., 1963, error ref., n.r.e.).

For the most part, the facts in this cause are undisputed. The sole question to be determined by this Court on this appeal is whether or not Mrs. Rich, in obtaining an assignment of the judgment in question by the payment of less than the amount due on such judgment, can succeed to the rights of the judgment creditor of such judgment. We find and hold that she cannot. In our opinion since the judgment creditor has no further interest in the judgment it was extinguished.

'The general rule is that the assignment of a judgment to or for the benefit of the judgment debtor satisfies the judgment, for the reason that two antagonistic rights of creditor and debtor merge in one and the same person.' 46 Am.Jur.2d 1028, § 891. See also § 996 of the same text as to the effect of the assignment of a judgment to one or more of the judgment debtors upon payment thereof. See also 18 Am.Jur.2d, Contribution, §§ 59, 76, 79 and 80; Greenspan v. Green, 255 S.W.2d 917 (Dallas Civ.App., 1953, ref., n.r.e.).

The Broadway case relied upon...