Walker v. Garland

• Court: Texas Court of Appeals
• Writing for the Court: Graves
• Citation: Walker v. Garland, 220 S.W. 399 (Tex. App. 1920)
• Decision Date: 27 February 1920
• Docket Number: (No. 7820.)
• Parties: WALKER v. GARLAND et al.

220 S.W. 399

WALKER v. GARLAND et al.

(No. 7820.)

Court of Civil Appeals of Texas. Galveston.

February 27, 1920.

Rehearing Denied March 18, 1920.

Appeal from District Court, Matagorda County; Samuel J. Styles, Judge.

Action by W. J. Walker against D. N. Garland and others. Judgment for defendants, and plaintiff appeals. Affirmed.

Gaines & Corbett, of Bay City, for appellant.

Conger & Davant, of Bay City, for appellees.

GRAVES, J.

W. J. Walker brought this suit in the district court of Matagorda county, Tex., against D. N. Garland and J. C. Barr and their respective wives, alleging:

"(1) That heretofore, to wit, on the 12th day of May, A. D. 1917, in the district court of Oklahoma county, Okl., this plaintiff, as intervening plaintiff in suit of Union Trust Company et al. v. D. N. Garland et al., numbered 13315 on the docket of said court, recovered judgment against D. N. Garland, Inez Garland, his wife, J. C. Barr, and Ollie Lou Barr, his wife, for the sum of $8,662.50, together with interest thereon from May 12, 1917, at the rate of 6 per cent. per annum, together with all costs of suit, that said court was a court of general jurisdiction and had jurisdiction of each of said defendants, and that they were each duly served with process in said suit and made their appearance therein, and that all proceedings in said cause leading up to said judgment, as well as the rendition and entry thereof, were in all things regular and legal, and that said judgment is a valid subsisting judgment in favor of this plaintiff and against the said defendants and each of them, for the amount hereinabove specified.

"(2) That no part of said judgment has been paid or satisfied.

"(3) That a transcript of said judgment and proceedings, duly authenticated, as required by law in such cases, is herewith filed and marked Exhibit A for identification.

"(4) That said judgment still remains in full force and effect, not reversed or otherwise vacated, and by reason of the premises the defendants and each of them are now justly indebted unto the plaintiff in the sum of $8,662.50, with interest thereon at the rate of 6 per cent. per annum, together with all costs of court."

Averment of refusal to pay after demand, and prayer for a recovery of the accumulated amount then claimed to be due followed.

The attached transcript of the Oklahoma judgment thus sued upon and accompanying proceedings, which were all duly certified and authenticated pursuant to the requirements of section 905, Revised Civil Statutes of the United States (volume 3, p. 37, Federal Statutes Annotated [U. S. Comp. St. § 1519]), in addition to the facts recited in the first half of paragraph 1 of the above-quoted averments from plaintiff's petition in this suit, and immediately following the adjudication of the $8,662.50 recovery to Walker against all four of the named parties defendant therein, contained this provision:

"And that the same be and hereby is adjudged and decreed to be a lien on the property hereinbefore described, second only to the mortgage on the same property in favor of the Union Trust Company, upon which decree of foreclosure is to be rendered in this case."

Then after an intervening decree of foreclosure upon and order of sale against the land involved there is this conclusion:

"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 and 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."

The defendants originally answered this petition by filing a general demurrer and a special exception, with an alternative plea of general denial in event both demurrers were overruled, and set up other matter in the form of a cross-action. Then followed numerous pleadings and counter pleadings back and forth between the parties, which in the view we take of the case it would serve no useful purpose to catalogue or discuss, because the net upshot of them all was simply a declaration by the plaintiff of a debt against the defendants upon the Oklahoma court's judgment of the form and character above described, and an objection by the defendants to being required to respond thereon, upon the ground that the judgment as sued upon was not such a final one as could support an action against them in Texas, but was a mere subsidiary and interlocutory order of the Oklahoma district court in a cause left undisposed of before it. It is quite true that this defense was presented under the idea that it was a matter affecting the jurisdiction of the court to hear the cause at all, and that the court itself also took that view of it. The fact remains, however, that the court, trying the cause without a jury, took all the trial pleadings of both sides, whether of demurrers or pleas, along with ...