Walker v. Garland

• Decision Date: 04 January 1922
• Docket Number: (Nos. 267-3490.)
• Citation: 235 S.W. 1078
• Parties: WALKER v. GARLAND et al.
• Court: Texas Supreme Court

Page 1078

235 S.W. 1078

WALKER v. GARLAND et al.

(Nos. 267-3490.)

Commission of Appeals of Texas, Section B.

January 4, 1922.

Error to Court of Civil Appeals of First Supreme Judicial District.

Action by W. J. Walker against D. N. Garland and others. A judgment for defendants was affirmed by the Court of Civil Appeals (220 S. W. 399), and plaintiff brings error. Affirmed.

Gaines & Corbett, of Bay City, for plaintiff in error.

J. W. Conger, of San Antonio, and W. E. Davant, of Bay City, for defendants in error.

HAMILTON, J.

Plaintiff in error, W. J. Walker, brought suit in the district court of Matagorda county, Tex., against D. N. Garland, Inez Garland, his wife, J. C. Barr, and Ollie Lou Barr, his wife, upon a judgment rendered May 12, 1917, in the district court of Oklahoma county, Okl., in favor of Walker as intervening plaintiff in the suit of Union Trust Company et al. v. D. N. Garland et al., numbered 13315 on the docket of said court. The petition alleges that the amount of the judgment is $8,662.50, with interest thereon from May 12, 1917, and all costs; that no part thereof has been paid or satisfied; and prays for judgment therefor against each of the defendants and for general relief. There was attached to and filed with the petition a transcript of the proceedings in the Oklahoma court, duly authenticated, as required by section 906 of the Revised Statutes of the United States (U. S. Comp. St. § 1520).

The judgment upon which the suit is based, omitting preliminaries, is as follows:

"It is therefore, by the court, ordered, adjudged, and decreed that the intervener and cross-petitioner, W. J. Walker, have and recover judgment of and from the defendants Daniel N. Garland, Inez Garland, his wife, and J. C. Barr, and Ollie Lou Barr, his wife, in the sum of $8,662.50, together with interest thereon from this date, at the rate of 6 per cent. per annum until paid, together with all costs of this action taxed at $____, and that the same be and hereby is adjudged and decreed to be a lien on the property hereinbefore described, second only to a mortgage on the same property in favor of the Union Trust Company, upon which decree of foreclosure is to be rendered in this case.

"It is further considered, ordered, adjudged, and decreed by this court that the said mortgage deed, given on the 25th day of May, 1912, be and the same is hereby foreclosed upon the real estate hereinbefore described, and that in event the judgment herein rendered in favor of the said W. J. Walker be not paid or satisfied within six months from the 12th day of May, 1917, that an order of sale issue out of the clerk's office of this court, directed to the sheriff of Oklahoma county, Okl., commanding him to advertise and sell as upon execution without appraisement the following described property located in Oklahoma City in Oklahoma county, Okl., to wit: [Description of property given.]

"This order of sale is made, however, subject to the judgment and decree in favor of the Union Trust Company hereafter to be rendered in the cause, and that the said sheriff is directed to pay out from the proceeds of said sale: (1) All court costs and costs of sale; (2) the amount of the judgment herein rendered in favor of W. J. Walker, and that the balance, if any, be brought into court to abide the further orders of the same."

Defendants' pleadings were long and un-important, because no proof was offered to sustain them.

The trial court heard all the pleadings and all the evidence, and at the conclusion sustained defendants' plea to the jurisdiction and dismissed the suit. The Court of Civil Appeals affirmed the judgment on the ground that the judgment of the Oklahoma court, on which the suit was brought, was not a final judgment. Plaintiff in error made application for and secured a writ of error, and the cause has been assigned for consideration and recommendation.

No evidence was introduced in the trial of the case except the authenticated judgment, upon which the suit was brought, and section 5153 of the Revised Laws of Oklahoma, providing that, if execution shall not be sued out within five years from the date of a judgment, it shall become dormant.

The Supreme Court will not reverse a judgment of the trial court or of the Court of Civil Appeals, if, considering the whole case, the judgment is right, although an erroneous reason or ground may have been assigned for entering it. Therefore plaintiff in error's complaint at the action of the Court of Civil Appeals in affirming the judgment of the trial court, notwithstanding it held the trial court in error in its ground of dismissal, is without legal basis, if the judgment was correct on any ground. Avery v. Popper & Bro., 92 Tex. 337, 48 S. W. 572, 49 S. W. 219, 50 S. W. 122, 71 Am. St. Rep. 849; T. & P. Ry. Co. v. Purcell, 91 Tex. 585, 44 S. W. 1058.

The judgment of the trial court properly disposed of the case, though it had jurisdiction, because the judgment of the district court of Oklahoma is not a final judgment when its force and effect are measured by the laws of Texas. In so far as this record shows, the final determination of the case as between the original parties has not been had.

"We know of no authority in Texas that authorizes an intervener to bring up a case on appeal in this state before such final disposition of the case as between these parties. To permit such a practice would cause the remedy of intervention to produce a multiplicity of suits relating to the same subject matter, instead of preventing a multiplicity of suits which is the main object of that remedy. Such a judgment as this could not be considered on appeal in Texas." Eccles v. Hill, 13 Tex. 65.

Judgment held in abeyance until an undetermined issue is tried is not a final judgment. Linn v. Arambould, 55 Tex. 620.

"A decree of sale in a foreclosure suit, which settles all the rights of the parties and leaves nothing to be done but to make the sale and pay out the proceeds, is a final decree for the purposes of an appeal." Grant v. Phœnix Ins. Co., 106 U. S., 429, 1 Sup. Ct. 414, 27 L. Ed. 237.

But as yet there is in this case no decree of sale. The court decreed that W. J. Walker have and recover judgment, and "that the same be and hereby is adjudged and decreed to be a lien on the property hereinbefore described, second only to a mortgage on the same property in favor of the Union Trust Company, upon which decree of foreclosure is to be rendered in this case," and then proceeds to order the sale, except for the conclusion, which is as follows: "This order of sale is made, however, subject to the judgment and decree in favor of the Union Trust Company hereafter to be rendered in the cause."

"Only one final judgment shall be rendered in any cause, except where it is otherwise * * * provided." Article 1997, Rev. Civ. Stat. of Texas.

The intervener's judgment is not final, nor would the judgment between the plaintiff and defendants in the main case be a final judgment. The final judgment must be one only, and must dispose of all the issues and of the rights of all the parties, including the intervener.

Again, article 2000 of the Revised Civil Statutes of Texas, governing judgments of foreclosure of liens, is as follows:

"Judgments for the foreclosure of mortgaes and other liens shall be that the plaintiff recover his debt, damages and costs, with a foreclosure of the plaintiff's lien on property subject thereto, and, except in judgments against executors,...