Coleman v. Zapp , 135 S.W. 730 ( 1911 )

⁸²²⁴ Writ of error granted by Supreme Court. We have reached the conclusion that the judgment in this case should be affirmed; and, while all others have received due consideration, we will limit this opinion to a discussion of what we deem the more important questions presented and discussed in the briefs of the respective parties.

1. We are of opinion that statutory limitation had no application to this proceeding, which is not the beginning of a suit upon a cause of action, but, in so far as the statute of limitation is concerned, is a continuation of a suit already begun. We are also of opinion that the remedy sought and awarded in the court below should not have been denied on account of laches or stale demand. It is true that six years elapsed before appellees made any effort to have the judgment which had been rendered in their favor carried into the minutes of the court, and it is also true that that judgment had become dormant because no execution had been issued thereon. But no intervening rights had accrued. Proof of the rendition of judgment against appellant was clear and satisfactory, and it is reasonably certain that the action of the court in causing the judgment to be placed on the minutes nune pro tune, and in reviving the judgment so entered, in order that execution might issue thereon, did not deprive appellant of any right that she was entitled to; and it is equally certain that the action of the court in granting that relief was in accord with the dictates of justice. In the very proceeding in which that judgment was rendered appellant admitted in her application for an injunction that she was indebted to the plaintiff upon a judgment previously rendered in the sum for which the court rendered judgment against her. It is true that in the present proceeding in which the judgment now complained of was rendered the trial judge (being the same judge who rendered the former judgment) testified that he had no recollection of; the testimony upon which the former judgment was rendered, and that he could not now make up a statement of facts under the former judgment. But, when the former judgment was rendered appellant Kate Coleman gave no notice of appeal; and it is reasonably certain that she would not have sought a reversal of the judgment, if it had at that time been entered upon the minutes. She admitted in her pleading in that proceeding that she owed appellees the amount for which the judgment was rendered; and the only relief she sought was to prevent the sale of certain property which had been levied upon and seized under an execution issued upon that judgment, and that relief was granted to her. Having admitted that she owed appellees the amount for which the entry on the docket shows that judgment was rendered against her, and not having given notice of appeal, and it being manifest that an appeal would not have afforded her any additional relief, we can see no reason why a court of equity should deny appellees the relief that was awarded to them, on the ground of laches or for any other reason. As to the inability of the judge to now prepare a statement of facts upon which the former judgment was rendered, it is sufficient to say that appellant had the right to have a statement of facts prepared and filed immediately after that judgment was rendered, and no one prevented her from exercising that right. Sayle's Ann.Civ.St. 1897, art. 1357; Freeman on Judg. art. 61; 1 Black on Judg. art. 130; Burnett v. State, 14 Tex. 455, 65 Am.Dec. 131; Ximenes v. Ximenes, 43 Tex. 463; Hamilton-Brown Co. v. Whitaker,4 Tex. Civ. App. 380, 23 S.W. 523.

Statutes of limitation have no application to equitable proceedings; and, while in many instances courts of equity in considering the question of laches and stale demand will apply by analogy the period of time mentioned in the statute, that rule is not inflexible, and the general tendency is to dispose of each case upon its own particular facts, and to apply or refuse to apply that doctrine as the merits of the particular case may seem to require. Considering the particular facts of this case, and the absolute merit in appellees' claim, we do not think that claim should be defeated upon the ground of laches or stale demand.

2. We have had more difficulty in reaching a conclusion as to appellees' right in this proceeding to obtain and foreclose a writ of attachment. As a general rule, it is true, as contended on behalf of appellant, that an attachment cannot properly be issued after a final judgment has been rendered. That is true because the mode prescribed by law for enforcing a judgment is an execution. However, when a judgment has been rendered, but has not been entered upon the minutes so that the clerk can properly issue an execution upon it, then it is not such a judgment as can be enforced by a writ of execution, and if grounds for an attachment exist, and that remedy is not available, the party in whose favor the judgment is rendered might never succeed in collecting the amount awarded him. Hence we conclude that it was the intention of the Legislature in providing the remedy of attachment that that remedy should continue from the beginning of the suit until the right to have an execution issued accrued. In this case, appellees' judgment not having been entered upon the minutes, the clerk of the court should not have issued an execution to enforce it, and therefore we hold that appellees had the right, when they commenced the proceeding under consideration, to sue out an attachment against appellant's property. It Is true that the affidavit for the attachment was made on the 14th day of May, and the attachment was not issued until the 17th day of the same month. The affidavit charged that appellant had disposed of her property with intent to defraud her creditors, etc., and the fact that it was made three days before filing the bond and application for scire facias and the issuance of attachment constituted no ground for quashing the attachment proceedings. Campbell v. Wilson, 6 Tex. 379; Wright v. Ragland, 18 Tex. 293.

Several other objections are urged against appellees' right to obtain and foreclose the attachment, but we do not care to discuss them in this opinion. They have been considered, and are not regarded as meritorious.

We also hold that it does not concern appellant if the court committed error in rendering judgment against Stewart McChesney, or in failing to render judgment on the claimant's bond filed by Winn. McChesney is the only one who could complain of the judgment rendered against him. Appellees are not complaining because judgment was not rendered upon the claimant's bond, and Winn is not complaining because of the foreclosure of the attachment lien. In fact, no one but Kate Coleman has appealed, and she cannot interpose objections for the benefit of others.

No error has been shown, and the judgment is affirmed.