Henry Wife v. Red Water Lumber Co. , 46 Tex. Civ. App. 179 ( 1907 )

This was an action of scire facias to revive a judgment of the Court of Civil Appeals, which judgment had been duly entered of record in the District Court, but upon which no process to enforce same had been issued within twelve months after rendition of said judgment. Appellee in its petition alleges that it was the owner of the judgment it was seeking to revive by purchase from the party in whose favor it was originally rendered. This sufficiently showed an interest in same entitling it to have such judgment revived.

There was no error in the action of the court overruling appellant's motion for a continuance, as the material facts desired to be proven by the absent witness appeared of record.

The action of the District Court in entering of record as its judgment the judgment of the Court of Civil Appeals, without citation or other notice to the parties against whom the judgment was rendered by the Court of Civil Appeals, was entirely proper, as such parties are in law regarded as having notice of all orders or judgments in the case affecting them, they being parties to the record and to such judgments. When the judgment of the trial court is reversed by the Court of Civil Appeals and judgment rendered by that court, such judgment becomes also the judgment of the trial court in that case, as it is to be enforced by the latter court; hence, it is proper for the trial court to have the judgment of the Court of Civil Appeals entered of record upon its minutes as its judgment. (Sayles Rev. Stats., Art. 1035.) And, for the reasons above stated, the judgment as entered of record in the District Court was admissible in evidence on the trial of this cause. Appellee's petition alleged the rendition of the original judgment in the District Court, its appeal to the Court of Civil Appeals, the reversal of the judgment of the District Court, and rendition of judgment in favor of appellant in the case by the Court of Civil Appeals, and the entry of record in its minutes of the judgment of the Court of Civil Appeals by the District Court, and that appellee was the legal owner of said judgment, which allegations were sufficient as against a general demurrer.

The four years statute of limitation pleaded by appellant does not apply to an action of scire facias to revive a judgment. Such an action may be brought within ten years after the date of the judgment. (Sayles Rev. Stats., art. 3361.)

Appellant's 6th assignment of error is not entitled to consideration by this court, because it is in violation of Rules 29 and 30 of the Court of Civil Appeals, in that it embraces numerous distinct and separate alleged errors of the trial court, and submits the assignment as a proposition. (Rules of Court, 84 Tex. 701-2.)

Appellant's 7th assignment of error is overruled for reasons already stated.

There was no error prejudicial to appellant in the action of the court below in admitting in evidence the petition and judgment in cause No. 8645, as the assignment to appellee of the judgment involved in this suit had already been admitted in evidence, which established a right in appellee to have that judgment revived.

The testimony of R. W. Rogers, admission of which is complained of in the 9th assignment of error, was properly admitted. If he knew of his own personal knowledge the fact about which he testified, his testimony was competent, although he had no knowledge of surveying.

No reversible error being pointed out in the record, the judgment of the court below is affirmed.

Affirmed.

Writ of error refused.