Sias v. Berly, 4646

• Decision Date: 19 October 1950
• Docket Number: No. 4646,4646
• Parties: SIAS et ux. v. BERLY.
• Court: Texas Court of Appeals

Page 503

245 S.W.2d 503

SIAS et ux. v. BERLY.

No. 4646.

Court of Civil Appeals of Texas, Beaumont.

Oct. 19, 1950.

Rehearing Denied Sept. 14, 1951.

Second Motion for Rehearing Denied Jan. 23, 1952.

E. W. Easterling, Beaumont, for appellants.

Marcus & Weller, Beaumont, for appellee.

WALKER, Justice.

This suit was brought to set aside a sale of land, to-wit, Lot 7, Block 12, McFaddin 2nd Addition to the City of Beaumont, which was made under an execution issued upon a judgment of the County Court at Law of Jefferson County. Appellants, Mr. and Mrs. John M. Sias, were the plaintiffs, and appellee Berly was the sole defendant, and the parties will be styled hereinafter as they were in the trial court.

Plaintiffs alleged various grounds for setting aside the execution sale. They charged, among other matters, that the judgment upon which the execution issued was dormant. In reply, defendant plead a revivor of the judgment by scire facias, and filed a cross action in trespass to try title. Plaintiffs filed a supplemental petition, but this need not be described.

The execution sale under attack occurred on June 6, 1939. Plaintiffs' original petition was filed on February 13, 1940, some eight months afterwards. Plaintiffs amended their petition on December 3, 1947, and tried the cause under the amendment.

The cause was tried to the court sitting without a jury, and the trial court rendered judgment in behalf of defendant Berly that plaintiffs take nothing of the defendant, and that defendant, on his cross action, recover of plaintiffs the title to and the possession of the land in suit. From this judgment plaintiffs have appealed.

At the request of plaintiffs, the trial court made original and supplemental findings of fact. Plaintiffs have filed a statement of facts. The findings and the proof consistent therewith show the following matters:

The judgment of the County Court at Law was rendered on July 13, 1932, in behalf of Ogden Johnson as Receiver of Edson Hotel Operating Company, against Mrs. Birdie Eastham, a feme sole. Mrs. Eastham married John M. Sias on May 6, 1933, and she and her husband are the plaintiffs in this suit.

On April 25, 1935, Ogden Johnson, as said receiver, assigned the judgment to defendant Berly by a written transfer. The document of transfer provided that defendant Berly should have 'full authority to demand and receive the same (meaning, the proceeds of said judgment) to his own use, and upon payment thereof, or any part thereof, to give discharge for same.' Assignor Johnson provided further in this transfer that 'I authorize said-Berly, in my name, but at his own cost and charge to sue out execution and all other legal process for the enforcement of said judgment.'

No execution was issued upon the judgment within the year which was prescribed by Article 3773, R.S.1925, prior to the amendment of that statute in 1933, Vernon's Ann.Civ.St. art. 3773; and on September 2, 1938, by a document filed in the original cause, defendant Berly instituted scire facias proceedings to revive the judgment. Plaintiffs were non-residents of Texas at this time, but on October 3, 1938, a non-resident notice and a writ of scire facias to plaintiffs (not to Mrs. Eastham but to plaintiffs), issued under this motion and were served upon plaintiffs in person in Pennsylvania on October 7, 1938. Answer day in both notice and writ was November 7, 1938, but no answer was filed and no appearance was made by plaintiffs; and on said answer day, the court passed an order as by default, providing 'that said judgment of date July 13, 1932 be and the same is hereby in all things revived, and let execution issue herein.' No appeal was taken from this order of revivor.

Subsequently, to-wit, on April 10, 1939, an execution was issued upon the original judgment of July 13, 1932, and was delivered to the sheriff of Jefferson County; and at the request of defendant Berly, made by letter dated May 6, 1939, was levied by the sheriff upon the land in suit, namely, Lot 7, Block 12, McFaddin's 2nd Addition to the City of Beaumont. On June 6, 1939, sale was made to defendant Berly under this writ and levy for $382.96; and upon defendant Berly's payment of this sum to him, the sheriff delivered a deed to said defendant conveying said property.

The execution of April 10, 1939, was the only writ of execution issued under the original judgment of July 13, 1932, or under the subsequent order reviving said judgment.

Defendant Berly was the only person who attended the execution sale, but according to findings made by the trial court, to which plaintiffs have filed no exception, this sale was duly advertised and was made in accordance with law, and due notice of said sale was given plaintiffs but plaintiffs did not attend the sale and did nothing to protect their interests in the property to be sold. The trial court found further:

'That said Charles L. Berly did no act or thing which in any way prevented said plaintiffs, John M. Sias and Birdie Eastham Sias, or either of them, from protecting their interest in said property.'

'That there was no confidential relationship whatever between said Charles L. Berly and said John M. Sias and Mrs. Birdie Eastham Sias and there was no element of fraud, misconduct, accident or mistake in connection with said sale, nor was there any other cause which in any way prevented said plaintiffs from protecting their interest in said property.'

On the date of the execution sale, June 6, 1939, the 'actual market value' of the land in suit was $3500. Taxes then chargeable against the property amounted to 'approximately $750', and there was of record a judgment against the plaintiff Mrs. Sias for $32.00, with interest from 1932. A judgment for $591.25 was also of record against her, but this judgment had actually been discharged by proceedings had in another suit.

As stated, defendant Berly paid $382.96 for the property at the execution sale but of this sum $346.01, the total amount of principal and interest then due upon the judgment of July 13, 1932, was paid in a manner which amounted to crediting that sum upon said judgment. The balance of defendant Berly's bid evidently represented costs. The trial court made the following findings respecting defendant Berly's payment: 'That at the time of the Sheriff's sale on June 6, 1939, Charles L. Berly paid the Sheriff his check for $382.96, which was the amount of his bid and the amount of the judgment and costs in Cause No. 10364. That thereafter the Sheriff issued his check payable to Ogden Johnson receiver of Edson Hotel Operating Company for $346.01 the amount of the judgment and interest thereon in Cause No. 10364, and that Ogden Johnson endorsed said check as receiver of Edson Hotel Operating Company and delivered the same to Charles L. Berly and that Charles L. Berly then deposited the check to his, Charles L. Berly's account in the bank.'

The trial court also found as a matter of fact that the price paid by defendant Berly was not so inadequate as to require that the execution sale be rescinded, and that 'there was nothing in the proceedings had with respect to said judgment, the issuance of execution thereon and the sale of said property which would tend to discourage or prevent bidders from bidding therefor.'

The property levied upon and sold under the writ of execution was at all relevant times prior to the execution sale the separate property of the plaintiff Mrs. Sias, formerly Mrs. Eastham. There is nothing to show that the property was improved or that it was the source of any income to plaintiffs.

The appeal is adjudicated upon the following conclusions:

(1) Under the provisions of Article 3773, R.S.1925, which were in force prior to the date when that statute was amended in 1933, the original judgment would have become dormant twelve months after its date because no execution issued thereupon within that twelve month period (although under Art. 5532, R.S.1925, an action of debt could have been maintained upon it). Plaintiffs say that the judgment did become dormant under this form of Art. 3773 because no execution issued within a year and that the judgment remained and was dormant when the execution of April 10, 1939, was issued upon said judgment. We proceed to discuss the several arguments made by defendant Berly in refutation of this contention.

(2) Article 3773 was amended in 1933 by Chapter 144, page 369, Acts of the 43rd Legislature, which is now in force, and which provides that a judgment shall become dormant if an execution is not issued within ten years (instead of twelve months) after rendition. This amendment was approved on May 18, 1933, less than a year after the date of the judgment of July 13, 1932, and defendant Berly says that the amendment became effective on the date of approval, namely, May 18, 1933, and that the judgment of July 13, 1932 never became dormant because the execution issued on April 10, 1939, within the ten year period prescribed by the amendment.

This argument is overruled because the amendment was not passed by a two-thirds vote of all the members elected to the Legislature, as required by Article 3, Section 39, of the Texas Constitution, Vernon's Ann.St. The amendment was enacted pursuant to a conference committee report, and this report was adopted by the House of Representatives by vote of 84 to 28, which was a two-thirds vote of the members present voting; but since the House membership presumably numbered 150, it was not a two-thirds vote of the persons elected to membership in the House of Representatives. At the foot of the amendment, as it is printed in the general laws of the 43rd Legislature, by authority of the State, appears the statement: 'Effective 90 days after adjournment', and we find this to be correct under the facts stated. The trial court actually found that the bill was passed by a vote of two-thirds of the members elected to said Legislature; but the finding shows...