Usery v. Lacy, 15953

• Court: Texas Civil Court of Appeals
• Writing for the Court: DIXON
• Citation: Usery v. Lacy, 351 S.W.2d 327 (Tex. Ct. App. 1961)
• Decision Date: 06 October 1961
• Docket Number: No. 15953,15953
• Parties: Paul USERY et al., Appellants, v. Robert E. LACY, Appellee.

Page 327

351 S.W.2d 327

Paul USERY et al., Appellants, v. Robert E. LACY, Appellee.

No. 15953.

Court of Civil Appeals of Texas, Dallas.

Oct. 6, 1961.

Rehearing Denied Nov. 10, 1961.

Harrington & Harrington, Longview, for appellants.

Witts, Geary, Hamilton, Brice & Lewis and Jim K. Choate, Dallas, for appellee.

DIXON, Chief Justice.

This is an appeal from an order granting a temporary injunction restraining appellants from proceeding with a sale of property under execution.

Appellant H. M. Harrington, Jr. is the holder and owner by transfer and assignment from Collis P. Irby, of a judgment against appellee Robert E. Lacy, on which judgment there is a balance due in the principal sum of $28,587.40 plus interest at 10% since 1952, making a total amount due in excess of $50,000. Appellants Paul Usery and J. M. Blalock are Sheriff and Deputy Sheriff respectively of Wood County, Texas.

A writ of execution was placed in the hands on the officers, levy was made on certain oil and gas properties alleged to belong to Lacy in Wood County, and a Sheriff's sale was advertised for February 7, 1961. However, on February 6, 1961, the day before the sale was to be held, the court issued its ex parte restraining order, and on February 16, 1961 the court, after a hearing, issued its temporary injunction order, under the terms of which appellants were 'enjoined from foreclosing or attempting to foreclose upon the real property or interest therein of Robert E. Lacy situated in Wood County, Texas, until this cause is finally determined, * * *'. It is from the above order of February 16, 1961 that this appeal has been taken.

Some of the persons, properties and transactions involved in this suit and appeal were involved also in an earlier suit and appeal in which Lacy was the losing litigant. See Lacy v. Carson Manor Hotel, Tex.Civ.App., 297 S.W.2d 367, writ ref. n. r. e.

On December 22, 1952, Texas Bank & Trust Company of Dallas was granted judgment against Robert E. Lacy and his wife Earlene G. Lacy and against Collis P. Irby and Carson Manor Hotel, a corporation, for $44,713.60 principal, with interest at the rate of 10% on $40,648.72 of said judgment and interest at the rate of 6% on $4,064.88 of said judgment from date of judgment. The judgment also awarded foreclosure on three parcels of property, two of which were owned by Lacy and one by Collis P. Irby and Carson Manor Hotel, of which Irby was the principal stockholder.

Parcels Nos. 1 and 2, belonging to Lacy, consisted mainly of properties constituting Pleasure Pier located at Port Arthur, Texas. Pleasure Pier is a pleasure resort consisting of a roller coaster, miniature train and track, merry-go-round, ferris wheel, shooting gallery, swimming, pool, etc. Included also is a leasehold interest in the real estate on which Pleasure Pier is located.

Parcel No. 3 in which Collis P. Irby and Carson Manor Hotel held interests, is a promissory note in the principal sum of $79,000 payable to Carson Manor Hotel, secured by a lien on real estate and by a chattel mortgage on personal property.

The Bank's suit and judgment were based on a note and mortgage, on which note Robert E. Lacy and wife were the principal makers and Collis P. Irby and Carson Manor Hotel were merely accommodation makers for the benefit of Lacy and wife. The court awarded judgment and foreclosure in favor of the Bank against all defendants and in favor of Collis P. Irby and Carson Manor Hotel over against Lacy for any sums of money which they or either of them might be required to pay to the Bank in satisfaction of the judgment.

The judgment recited that by reason of the position of Collis P. Irby and Carson Manor Hotel as accommodation makers, and their plea for marshalling of assets, Irby and Carson Manor Hotel were entitled to have the security of Robert E. Lacy and wife sold first, said security being parcels Nos. 1 and 2 of the property foreclosed on; and parcel No. 3, the security owned by Irby and Carson Manor Hotel, sold only in the event the proceeds of the sale of the parcels Nos. 1 and 2 were insufficient to pay off the judgment.

Some time after the above judgment was rendered an order of sale was issued in favor of Texas Bank & Trust Company and placed in the hands of the Sheriff of Jefferson County, Texas, for execution. On or about April 16, 1953 parcels Nos. 1 and 2 were sold pursuant to the order of sale, and were bid in at the Sheriff's sale by Collis P. Irby, individually, for the sum of $15,626.20, which amount was duly credited on the judgment held by Texas Bank & Trust Company. Following this sale and the crediting of the proceeds thereof there was still due and unpaid on the judgment as of April 16, 1952 the approximate sum of $29,097.40.

To protect himself Collis P. Irby, whose credit was good at the Bank, negotiated a loan at the Texas Bank & Trust Company of about $51,300. This was a loan to Irby individually. It was out of the money obtained through this loan that Irby paid the $15,626.20 to the Sheriff for the purchase at the Sheriff's sale of parcels Nos. 1 and 2, the Pleasure Pier.

But there was still a balance of about $30,000 due the Bank on the judgment of December 22, 1952, and according to Irby's testimony the Bank was about the cause a second order of sale to issue directing the sale of parcel No. 3, the property belonging to Irby and Carson Manor Hotel, the accommodation makers on Lacy's note. Irby therefore paid the Bank the amount of the balance due on the judgment, approximately $30,451, in return for which the Bank sold, transferred and assigned to Irby the remainder of the judgment against Lacy. This sum was also paid to the Bank by Irby out of the $51,300 which Irby individually had borrowed earlier from the Bank.

The situation of Irby, originally an accommodation maker on Lacy's note, at this point in the proceeding was as follows at the Sheriff's sale he had purchased and had become the owner of parcels Nos. 1 and 2, the Pleasure Pier for $15,626.20. Then he had averted foreclosure on his interest in parcel No. 3 by purchasing from the Bank for 100 cents on the dollar the judgment against Lacy, that is the balance due against Lacy after crediting the $15,160,20. But to do this Irby had obligated himself personally and individually on his own note to the Bank for $51,300.

Irby is not a party to this suit and by the time of the hearing at which the temporary injunction was granted he had sold and transferred his judgment against Lacy to appellant H. M. Harrington, Jr. But he was a witness at the hearing.

Irby testified that after he purchased the Pleasure Pier on April 16, 1953 at the Sheriff's sale he 'had to go down and rehabilitate the place completely, * * * nothing had been done to the place and a place like that goes down awfully quick, particularly down on the coast where everything abssorbs the atmosphere. It depreciates and deteriorates.'

Irby further testified that after he had rehabilitated Pleasure Pier he negotiated a sale of the property to a group of Port Arthur business men. Concerning this sale of the property Irby testified: 'It took me quite a while to negotiate the sale, and I stayed down there and worked on it awfully hard, worked day and night trying to sell it, rehabilitating it, and it really ran into a proposition.' Irby did not remember how long it was after he purchased Pleasure Pier at the Sheriff's sale that he sold it to the group of Port Arthur business men. However, Max Rosenfield, the attorney who represented Irby in both the purchase and sale of the property, testified that the sale to the Port Arthur business men took place two or three months after its acquisition by Irby at the Sheriff's sale.

We have dwelt somewhat at length on the part of the transactions here involved because it is undisputed that Irby sold Pleasure Pier for enough money to pay off his $51,300 loan at the Bank, thus clearing his skirts of all liability incurred by him and his corporation, Carson Manor Hotel, as accommodation endorsers on Lacy's note to the Bank, while leaving Lacy still liable for payment of the balance due on the judgments.

Thereafter for several years nothing further happened with reference to the Bank judgment against Lacy, which judgment was now owned by Irby. However Irby had recorded the judgment in counties other than Jefferson County and in December 1960 the sum of $500 was paid to Irby to clear title to a certain piece of property in which Lacy was interested. By 1960 the amount owed by Lacy on the judgment including interest, had amounted to more than $50,000.

On December 15, 1960 Irby sold, transferred and assigned to H. M. Harrington, Jr. all his interest in the judgment against Lacy. This transfer and assignment was without recourse on Irby. Soon thereafter Harrington caused an execution to issue and a levy was made on oil and gas properties in Wood County valued by Lacy at more than $2,000,000 in which Lacy claims an interest. It was to restrain sale under execution of Lacy's interest in this property that the court issued the temporary injunction which is the subject of this appeal.

The above property is at present the subject of another suit in which Lacy as plaintiff has brought a trespass to try title suit against numerous defendants, one of whom is H. M. Harrington, Jr.

Opinion

In his first, second, fourth and fifth points on appeal appellant H. M. Harrington, Jr. contends that (1) Lacy's sworn petition is wholly insufficient to support the temporary injunction entered; (2) the trial court erred in admitting testimony dealing with prior executions and orders of sale, since these issues are not within the sworn pleadings of appellee Lacy; (4) where judgment debtor Lacy (a) did not attack the final judgment against him, (b) did not seek to vacate or set it aside, (c) did not allege lack of jurisdiction over his person, (d) did not allege lack of jurisdiction of the court that entered the judgment...