Wicker v. Jenkins
| Decision Date | 27 February 1908 |
| Citation | 108 S.W. 188 |
| Parties | WICKER v. JENKINS. |
| Court | Texas Court of Appeals |
Appeal from District Court, Hutchinson County; H. G. Hendricks, Judge.
Action by W. F. B. Wicker against J. O. Jenkins. From a judgment for defendant, plaintiff appeals. Reversed and remanded.
Coffee & Kelly and Willis & Willis, for appellant. W. T. Allen and Hoover & Taylor, for appellee.
Appellant, W. F. B. Wicker, some time prior to the filing of this suit, had recovered two judgments against one Joe Phillips which were unsatisfied and subsisting at the time of this suit. One of them was for the sum of $364.27, rendered in the district court of Wheeler county on the 8th day of September, 1903, in cause No. 241; the other, for the sum of $163.47, rendered in cause No. 214 in the district court of Hemphill county on the 8th day of January, 1904. Upon both of these judgments executions had been issued as required by law, and no payments had been made thereon nor any credits entered, but the whole amount of each was unpaid at the time this suit was entered against the appellee. On the 21st day of September, 1903, the appellant caused an abstract of the judgment in cause No. 241, in Wheeler county, to be made and recorded in the office of the county clerk of Hutchinson county on the 29th day of September, 1903. The proper date and number of the judgment were given, and the amount of the same stated as $364.27, costs $11.90, rate of interest at 10 per cent., the amount of credits "none," and the whole amount still due at $376.17. There was no memorandum on the judgment record of the certificate of the clerk of the district court of Wheeler county as to the abstract; neither was the interest which accrued after the rendition of the judgment, and before the abstract was made, included in the amount still due, and as such incorporated into and made a part of the record of the whole sum still due. The appellant also had an abstract of the judgment in cause No. 214, in Hemphill county, made and recorded in the office of the county clerk of Hutchinson county about the same time. But in this abstract the name of the plaintiff in the suit was stated as W. Wicker, instead of W. Wicker as it should have been. The correct amount and rate of interest were given. At the time the abstracts mentioned were made and recorded in Hutchinson county the defendant in those suits, Joe Phillips, owned certain tracts of land in that county which were thereafter sold by him to the appellee in this suit. The land was subject in his hands to the judgment liens created by the abstracts which had been recorded by the appellant, unless the defects urged and sustained by the court below were such as to render them invalid as such liens. In May, 1906, the appellant instituted this suit in the district court of Hutchinson county against the appellee, seeking to foreclose those judgment liens against the lands which had been purchased from Joe Phillips by the appellee. The cause was submitted to the court without a jury. The court excluded both abstracts when offered in evidence, and rendered judgment for appellee; from which judgment appellant has appealed.
The first assignment of error complains of the action of the court in excluding the abstract in cause No. 214. The specific objections urged to the admission of this abstract in evidence were: The transposition of the two middle initials of the plaintiff in the original suit, the failure of the record to state the amount due upon the judgment and the amount of credits, and because the certificate of the district clerk of Hemphill county authenticating the abstract was not also made a part of the record. It has been held by the Supreme Court that the certificate of the clerk attesting the correctness of the abstract need not be recorded. Spence v. Brown, 86 Tex. 430, 25 S. W. 413. The bill of exceptions shows that the amount for which the judgment was rendered, together with the rate of interest and amount of costs, were correctly given, but that the spaces in the record book where the amount of credits and the sum still due were to be placed were left blank. We do not think this materially varied from the statutory requirements. When the judgment abstract showed the sum for which judgment had been rendered and the rate of interest it bore, it complied with the statute in requiring the statement of "the amount for which the same was rendered and the amount still due upon the same." First Nat. Bank v. Cloud, 2 Tex. Civ. App. 627, 21 S. W. 770; P. J. Willis & Bro. v. Sommerville, 3 Tex. Civ. App. 509, 22 S. W. 781.
But the remaining objection which was urged to the admission of this abstract is not so easily...
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Turk v. Benson
... ... 21 A. 358; Hutchinson's Appeal, 92 Pa. 186; Davis v ... Steeps, 87 Wis. 472, 23 L.R.A. 818, 41 Am. St. Rep. 51, ... 58 N.W. 769; Wicker v. Jenkins, 49 Tex. Civ. App ... 366, 108 S.W. 188 ... Under ... such circumstances, plaintiff should not have paid the ... ...
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Turk v. Benson
...92 Pa. 186;Davis v. Steeps, 87 Wis. 472, 58 N. W. 769, 23 L. R. A. 818, 41 Am. St. Rep. 51;Wicker v. Jenkins, 49 Tex. Civ. App. 366, 108 S. W. 188; note at 14 L. R. A. 394; note at 7 L. R. A. (N. S.) 416; Warvelle on Abstracts, §§ 466, 467; Johnson v. Wilson, 137 Ala. 468, 34 South. 392, 97......
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Union Square Federal Credit Union v. Clay, No. 2-07-167-CV (Tex. App. 4/23/2009)
...raised for first time on appeal because "a misnomer can be taken advantage of only by plea in abatement"). 41. See Wicker v. Jenkins, 49 Tex. Civ. App. 366, 108 S.W. 188, 190 (Tex. Civ. App.-Texarkana 1908, no writ) (noting that common law rule disregarding middle initial, or middle name, o......
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Midland County v. Tolivar's Estate, 3551.
...298, 132 S.W. 882; Anthony v. Taylor, 68 Tex. 403, 4 S.W. 531; Willis v. Sanger, 15 Tex.Civ.App. 655, 40 S.W. 229; Wicker v. Jenkins, 49 Tex. Civ.App. 366, 108 S.W. 188, 190. The judgment of the lower court is in all things ...
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CHAPTER 4 FINDING, ACCESSING, RUNNING, AND EXAMINING THE LOCAL RECORDS AND PREPARING THE CHAIN OF TITLE
...writ ref'd). An abstract of judgment may not be enforced if it is indexed under an incorrect name. For example, in Wicker v. Jenkins, 108 S.W. 188 (Tex. Civ. App. 1908, no writ), the court held that the abstract of judgment was invalid where record title was in W. F. B. Wicker, but the abst......