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Hicks v. First National Bank in Dalhart , 1989 Tex. App. LEXIS 1772 ( 1989 )


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  • POFF, Justice.

    This appeal arises out of two underlying cases, Nos. 2882 and 3239, consolidated in the trial court as No. 2882. The first case, original No. 2882, was filed on April 10, 1981, by appellee First National Bank in Dalhart (the “bank”) against appellant Allen Wayne Hicks (“Hicks”) to recover the balance due on a promissory note. A default judgment was signed more than five years later on May 2, 1986. A writ of execution was issued more than 21 months later on February 17, 1988, and returned nulla bona.

    The second case, original No. 3239, was a garnishment action filed on February 12, 1988, by the bank against garnishee Dal-hart Federal Savings and Loan Association to recover funds belonging to Hicks in possession of the garnishee. Hicks filed a pleading styled “Motion to Vacate Judgment and Dismiss Action” in No. 2882, and a motion to dissolve the writ of garnishment in No. 3239. Both motions were overruled, the cases consolidated, and a judgment rendered against the garnishee for funds belonging to Hicks.

    Hicks raises two points of error on appeal. By his first point of error, he contends that the trial court erred in failing to vacate the default judgment and dismiss original No. 2882 for want of prosecution, because the lawsuit had been abandoned as a matter of law prior to entry of the default judgment. By his second point of error, Hicks contends that the trial court erred in failing to dissolve the writ of garnishment because the default judgment had become dormant under Tex.Civ.Prac. & Rem.Code Ann. § 31.006 (Vernon 1986) and would not support issuance of the writ of garnishment. We disagree with these contentions, and for the reasons below will affirm the judgment of the trial court.

    By his first point of error, Hicks seeks appellate review of the validity of the default judgment. Although the issue has not been addressed by either party, we conclude that Hicks’ “Motion to Vacate Judgment and Dismiss Action” constituted an impermissible direct attack on the default judgment. The motion was filed on March 4, 1988, long after the deadlines had passed for filing a motion for new trial or suing out a writ of error. See Tex.R.Civ.P. 329b(a); Tex.R.App.P. 45(d). When the time for filing a motion for new trial has expired, and relief may not be obtained by appeal, a bill of review is the exclusive method for vacating a default judgment rendered in a case in which the court had juridictional power to render the judgment. Tex.R.Civ.P. 329b(f); McEwen v. Harrison, 162 Tex. 125, 345 S.W.2d 706, 710 (1961). Jurisdictional power means jurisdiction over the subject matter, i.e., the power to hear and determine cases of the general class to which the particular case belongs. Middleton v. Murff, 689 S.W.2d 212, 213 (Tex.1985); Deen v. Kirk, 508 S.W.2d 70, 72 (Tex.1974).

    The default judgment in this case was rendered in a suit on a promissory note, a matter within the district court’s subject matter jurisdiction. See Tex. Const. art. V, § 8. Under these facts, a bill of review was the sole method available to attempt to vacate the default judgment. See also El Paso Pipe and Supply Co. v. Mountain States Leasing, Inc., 617 S.W.2d 189, 190 (Tex.1981); De La Rosa v. Vasquez, 748 S.W.2d 23, 25 (Tex.App.—Amarillo 1988, no writ).

    The “Motion to Vacate Judgment and Dismiss Action” does not contain the requisites of a bill of review. Therefore, we may not treat the motion as such. Bridgman v. Moore, 143 Tex. 250, 183 S.W.2d 705, 706 (1944); LaBarba v. Eubanks, 227 S.W.2d 884, 885 (Tex.Civ.App.—Waco 1950, no writ). Because Hicks did not pro*100ceed by bill of review, his point of error presents nothing for review. Hildyard v. Fannel Studio, Inc., 547 S.W.2d 332, 338 (Tex.Civ.App.—Corpus Christi 1977, writ ref d n.r.e.). Hicks’ first point of error is overruled.

    By his second point of error, Hicks contends that the trial court erred in failing to dissolve the writ of garnishment because the default judgment had become dormant under Tex.Civ.Prac. & Rem.Code Ann. § 31.006 (Vernon 1986) and would not support issuance of the writ of garnishment. Resolving this point of error requires us to construe Tex.Civ.Prac. & Rem.Code Ann. § 34.001 (Vernon 1986) together with section 31.006.

    Section 31.006 is a revision and codification of former Tex.Rev.Civ.Stat.Ann. art. 5532 (repealed 1985). Section 31.006 provides as follows:

    If execution has not issued within 12 months after the date of the rendition of a judgment in a court of record, the judgment may be revived by scire facias or by an action of debt brought not later than 10 years after the date of the rendition of the judgment.

    Section 34.001 is a revision and codification of former Tex.Rev.Civ.Stat.Ann. art. 3773 (repealed 1985). Section 34.001 provides as follows:

    (a) If a writ of execution is not issued within 10 years after the rendition of a judgment of a court of record or a justice court, the judgment is dormant and execution may not be issued on the judgment unless it is revived.
    (b) If a writ of execution is issued within 10 years after rendition of a judgment but a second writ is not issued within 10 years after issuance of the first writ, the judgment becomes dormant. A second writ may be issued at any time within 10 years after issuance of the first writ.

    An apparent conflict exists between the two statutes concerning when a judgment becomes dormant. Section 31.006 states, “If execution has not issued within 12 months ... the judgment may be revived ...,” implying that a judgment becomes dormant after 12 months if no execution has issued, while Section 34.001 states, “If a writ of execution is not issued within 10 years ... the judgment is dormant_”

    The same conflict existed between the predecessor statutes, arts. 5532 and 3773. The conflict was resolved in Cox v. Nelson, 223 S.W.2d 84 (Tex.Civ.App.—Texarkana 1949, writ ref’d). The court traced the history of the statutes, concluding that art. 3773 was controlling and that a judgment remained valid for 10 years after rendition. By its outright refusal of the application for writ of error, the Supreme Court endorsed the principles of law declared in Cox v. Nelson. See Tex.R.App.P. 133(a).

    The case of Allied Finance Co. v. Kelly, 317 S.W.2d 790 (Tex.Civ.App.—Waco 1958, writ dism’d w.o.j.) relied upon Cox v. Nelson to uphold issuance of a writ of garnishment. In Kelly, more than 12 months, but less than 10 years, had passed after rendition of the judgment without issuance of a writ of execution. The defendant argued that the judgment had become dormant under art. 5532 and would not support issuance of a writ of garnishment. The court cited Cox v. Nelson and held that the judgment had not become dormant by virtue of art. 3773. 317 S.W.2d at 793-94.

    As noted earlier, sections 31.006 and 34.-001 are revisions and codifications of arts. 5532 and 3773. Under the statutory revision program prescribed by the Legislature, the Texas Legislative Council may not alter the sense, meaning, or effect of a statute. Tex. Gov’t Code Ann. § 323.007(b) (Vernon 1988). The revision and codification of arts. 5532 and 3773 did not alter the meaning or legal effect of the statutes, and decisions construing arts. 5532 and 3773 remain viable precedent for construction of sections 31.006 and 34.001.

    We conclude that section 34.001 is controlling over section 31.006. The default judgment remains valid for 10 years after rendition. Issuance of the writ of garnishment was therefore supported by a valid and subsisting judgment and the trial court properly refused to dissolve the writ. Hicks’ second point of error is overruled.

    *101The judgment of the trial court is affirmed.

Document Info

Docket Number: 07-88-0215-CV

Citation Numbers: 778 S.W.2d 98, 1989 Tex. App. LEXIS 1772, 1989 WL 73978

Judges: Reynolds, Boyd, Poff

Filed Date: 7/6/1989

Precedential Status: Precedential

Modified Date: 11/14/2024