Taylor v. Doom

• Decision Date: 25 April 1906
• Citation: Taylor v. Doom, 95 S.W. 4, 43 Tex.Civ.App. 59 (Tex. App. 1906)
• Parties: TAYLOR et al. v. DOOM et al.
• Court: Texas Court of Appeals

Page 4

95 S.W. 4

TAYLOR et al. v.DOOM et al.

Court of Civil Appeals of Texas.

April 25, 1906.

On Rehearing, May 23, 1906.

Appeal from District Court, Jasper County; W. B. Powell, Judge.

Action by D. W. Doom and others against T. L. Taylor and others.From a judgment for plaintiffs, defendants appeal.Affirmed.

W. W. Blake, for appellants.D. W. Doom and H. C. Howell, for appellees.

FLY, J.

This is an action of trespass to try title to 225 acres of land, instituted by appellees against appellants.Appellants answered by pleas of not guilty and limitation.The cause was tried by the court and resulted in a judgment in favor of appellees.

It was agreed that William Taylor was the common source.Appellees claimed the land through an execution sale made by virtue of a judgment in a case styled "B.Well v. Wm. Taylor," and appellants claimed the land as the heirs of William Taylor and their mother.The land was the community property of William Taylor and his first wife.While it is inferentially found by the court that appellants were the heirs of the first wife of William Taylor there is no proof of any but Z. W. Taylor being her heir.It appears from the statement of facts, that it was admitted by both parties that William Taylor is the common source of title, and that appellants are the heirs and legal representatives of said William Taylor.We find that the title to the land was in appellees.Other facts are found in connection with the discussion of the assignments of error.It appears that B. Weil obtained a judgment, on April 9, 1867, against William Taylor for $588.58, and costs, and that it became dormant by failure to issue execution within a year from its date.Suit was then brought by the plaintiff to revive the judgment and to correct the former judgment in a matter of interest, and a judgment was obtained to that effect.The last judgment recited that the former one had been obtained, that it was rendered for an insufficient amount, and that it had become dormant, and it revived the judgment and corrected the same.Under these circumstances, the cause being tried by the court, it does not appear how appellant could have been prejudiced by the admission in evidence of the first judgment.The recitals in the second judgment contained everything of importance in the first one.If it should be held that the judgment of October 8, 1868, was void, in so far as it sought to increase the amount of the former judgment that would not invalidate that portion of it which revived the former judgment.The one part is separable from the other.But clearly under the provisions of article 1357, Rev. St. 1895, the mistake or miscalculation could be corrected at any time on application of either party, after the opposite party had been given notice of the application for such amendment.Russell v. Miller, 40 Tex. 494;Chestnutt v. Pollard, 77 Tex. 86, 13 S. W. 852.The error was one that could be corrected from the record itself, and was a case peculiarly within the purview of the statute.It was a clerical error in the calculation of interest that was corrected.Railway v. Haynes, 82 Tex. 448, 18 S. W. 605;Whittaker v. Gee, 63 Tex. 435.But as before stated if the attempt to amend was ineffectual that, the revival of the former judgment, was not affected thereby.

The original execution, under which the land in controversy was sold, was destroyed by fire, and the court admitted in evidence an entry on the execution docket of the district and county clerk of Jasper county.That entry showed that the execution was issued October 3, 1872, for debt and costs, $514.21, and was returnable to November term, 1872.There was also an entry of the sheriff's return showing that the execution had been levied on the land in controversy, that the proper advertisement had been made and that on the first Tuesday in November, 1872, the property had been sold to appellees for the sum of $135.This was followed by a statement of how the money was applied by the sheriff.Appellant objected to the entries because the execution and sale were void, as being without the authority of any court, because the return fails to correctly number or style the cause in which the execution was issued, and because it was vague and uncertain.There is no merit whatever in these objections.The style of the case was given, and it was sufficiently identified.No variance is shown by reason of the amount for which execution was issued being larger than the original amount of the judgment.It would very naturally be larger in 1872 than is was in 1868, as it had been bearing interest all the time.It seems to be a contention that the execution having been issued by virtue of the judgment of 1868, and that judgment not authorizing an execution except under the judgment of 1867, the execution was necessarily void.The last judgment recited the amount of the first judgment, stated that there had been a miscalculation of the interest and then gave the correct amount of interest and additional costs, revived the former judgment and awarded execution "thereupon."It is not essentially necessary to the issuance of an execution that it be provided for in the judgment, and an execution could have been issued under the judgment of 1868 although it was not provided for therein.Freeman, Judg. § 2;Roberts v. Connellee, 71 Tex. 11, 8 S. W. 626;Hartz v. Hausser, 90 S. W. 63, 14 Tex. Ct. Rep. 141.It does not appear that any execution had been issued under the judgment until 1872, and if that be true, the judgment was dormant.However, a sale under a dormant judgment is not void but only voidable, and can only be attacked in a direct proceeding instituted for that purpose.It cannot be attacked in a collateral proceeding.Sydnor v. Roberts, 13 Tex. 598, 65 Am. Dec. 84;Hancock v. Metz, 15 Tex. 205;Hawley v. Bullock, 29 Tex. 217;Boggess v. Howard, 40 Tex. 153;Laughter v. Seela, 59 Tex. 177;Maverick v. Flores, 71 Tex. 110, 8 S. W. 636.The evidence as to occupancy of any part of the land in controversy is too vague and uncertain to support a plea of limitations.It is not shown whether the parties who at different times occupied the house did so as tenants of appellants or not.Z. W. Taylor swore that a part of the old William Taylor farm which had been in cultivation for 30 or 35 years, was on the land in controversy, but the nearest he could come to fixing the number of acres was from 10 to 40 acres.He then swore that he did not know where the line of the land in controversy was, clearly showing that he knew nothing about whether any of the 225 acres in controversy was in the farm or not.He said the house was near a line made by Mr. Blake.The latter testified that he was a surveyor, but did not find the line between the land in controversy and the 490 acres belonging to appellants.Evidently he knows nothing about the location of the line, and yet from his calculations he testified that the house of W. D. Taylor was about 20 feet from the line.Z. W. Taylor also swore that he, as agent for Mrs. Trotti and Mrs. Jones, had, 4 or 5 years ago, sold some oak timber off the land in suit.The foregoing is substantially what was sworn in support of the pleas of limitation.It is clearly insufficient to establish title by limitations.The house of W. D....