DocketNumber： 4646
Judges： Walker
Filed Date： 10/19/1950
Status： Precedential
Modified Date： 11/14/2024
Both plaintiffs and defendant have filed motions for rehearing.
Defendant’s motion contains the following grounds, all of which are overruled for the reasons hereinafter stated.
(1) Defendant says that Article 3783, R.S.1925, only required that the writ describe the “judgment,” and that the “judgment” to be described was the one mentioned in and enforced by the writ, namely, the original judgment for money, rendered against Mrs. Eastham. We think that “judgment” can b.e, and ought to be construed as referring to the foundation of the writ of execution. The judgment for debt was only a part of the foundation of the writ. It did not authorize the issuance of the writ; without the order of revivor the writ would not have been valid, and thus this order was a part of the foundation of the writ.
(2) Defendant says that the bill of costs attached to the writ lists items charged for the proceedings in scire facias and thus, in effect, informed prospective purchasers that the original judgment had been revived. This argument implies that a prospective purchaser either should have been expected to read the bill of costs or that he was as much bound to read the bill of costs as to read the face of the writ, and that he was bound to pursue inquiries suggested by the items in the bill. The effect of the argument is that statements in the body of the bill of costs describing the items charged would obviate defects on the face of the writ.
This argument was not considered by us on the original hearing. We did not read the bill of costs which was attached to the writ of execution. This bill is in the statement of facts and among the items of clerk’s costs were the following:
“Writ of Scire Facias $ 1.00
Order Reviving Judg. .50
Total Clerk’s Costs 4.05”
Among the items of Sheriff’s costs listed were these:
“Writ of Scire Facias and-miles 6.50
Total Sheriff’s Costs 7.95”
Miscellaneous fees were also charged and at the foot of the bill was the following:
“Grand Total Costs $15.00”
The writ on its face commanded the sheriff .to collect the sum of $15 in costs.
The original judgment against Mrs. East-ham was for the principal sum of $244.54, with 6% interest thereon from the date of judgment “together with all costs of this suit.”
It seems to us that with this judgment and this writ before him the prospective purchaser could not have been expected to turn to the bill, and thus could not 'have been expected to obtain from the bill information which (under our holding that the revivor proceedings should have been mentioned in the writ) he had a right to expect on the face of the writ.
We hold, further, that- the statements in the bill of costs which we have quoted were not a compliance with the requirement of Article 3783, R.S.1925, that the writ describe the “judgmentand that since this statute provided that the description of the “judgment” appear on the face of the writ, a prospective purchaser was not absolutely ¡bound to read the bill of costs to get this information.
Irvin v. Ferguson, 83 Tex. 491, 18 S.W. 820, does not hold to the contrary of any of these propositions but, as we construe the opinion, supports our conclusions. In that case, the total costs charged in the writ exceeded the costs in the trial court under’ the judgment on which the writ issued, but the bill of costs attached to the writ showed that $76 was charged for the costs on appeal. The court said that the excessive total charge made for costs raised a doubt concerning the identity of the judgment under which the writ had issued. This doubt would not have arisen if defendant has correctly construed the opinion; the bill of costs would have explained this doubt and the court would not have said that the doubt existed. The court must have thought the purchaser was not bound to, and was not to be expected to read the bill of costs to resolve this doubt. The court also said that if the time of issuance
(3) We adhere to our conclusion that the land in suit was sold for an inadequate price and that there is no evidence which tends to show that the failure to mention the re-vivor proceedings in the writ did not affect the price for which the land was sold. We note defendant Berly’s statements that the property was unimproved and produced no revenue and that at the time of the sale “real estate was just almost not moving at all.” Doubtless this testimony tends to prove a restricted market and thus, a difficulty in selling the particular tract which would have affected the market value of the tract. Nevertheless the trial court found that the “actual market value” of the land in suit was $3500. This finding is either inconsistent with Mr. Berly’s statements or else means that in the market Mr. Berly referred to the land could have been sold for $3500.
(4) We also adhere to our construction of Points 6 and 10. We agree that our construction is a very liberal one but we think it required by the rule that the meaning of a point of error is to be determined by considering the arguments made as well as the language of the point itself. Further, a liberal construction is proper because the plaintiffs’ complaints are clearly shown by their brief, and on this appeal the points serve no function whatever except to point out matters of which the appellants complain. A literal construction of the points would amount to an insistence upon form.
(5) Defendant says that plaintiffs made no assignment attacking any finding of fact but that we have nevertheless set aside some of the findings. If we have correctly construed the points of error which we sustained, these points, read as they must be with the arguments of the plaintiffs, were inconsistent with the findings which we have set aside and are therefore to be treated as incidentally assigning error to these findings. There is no reason why the plaintiffs should have multiplied their points of error and we are not disposed to consider whether the points, thus construed, are multifarious. The cause was tried before the court without a jury; no motion for new trial was required and none was filed; and the points of error serve no function whatever on this appeal except to inform this court and the parties of what the plaintiffs are complaining. Plaintiffs’ complaints have been reiterated in detail in their arguments, and the issues to be adjudicated, the issues of fact as well as the issues of law, have been clearly shown. Thus if the points of error had any.function this function has been performed.
(6) Defendant says that the holding on which we reversed the trial court’s judgment represents a new theory of recovery, one which plaintiffs did not plead and which they did not make in the trial court.
The irregularity which we held to be material was not mentioned in the pleadings. It was proved, that is, thrown up automatically as a question o-f law, by the evidence of the writ and the evidence of the proceedings in scire facias. Plaintiffs plead the writ and the defendant plead the scire facias. The irregularity was not mentioned in the statement of facts nor in the judgment. However, we have construed the trial court’s findings and conclusions as adjudicating questions concern
Finding 11 contains this statement: “thereafter a writ of execution in due form of lazo was issued * * The irregularity which we held to be material was a defect in the form of the writ.
Finding 21 contains this statement: “that under all the circumstances surrounding the sale * * * the price paid * * * was not inadequate.” The form of the writ might be considered one of these “circumstances.”
Finding 22 reads: “That the said Sheriff’s sale of said property was in all respects a fair sale, and was in all respects in compliance with law and there was no act or thing done or omitted to be done which in any way discouraged or prevented other or further bids for said property 'besides that which was made by said Charles L. Berly.” Finding 23 reads: “That there wag nothing in the proceedings had with respect to the said judgment, the issuance of execution thereon and the sale of said property which would tend to discourage or prevent bidders from bidding therefor.” These statements are broad enough to cover the form of the writ and its effect upon the action of prospective bidders.
The trial court also made the following conclusions of law:
“9. That there were no irregularities in connection with the sale of said property under execution or any grounds for setting aside said sale. 10. That the plaintiffs have failed to show or establish any facts entitled them to the relief sought by them in this suit. 11. That defendant, Charles L. Berly, acquired good title to said property above described, by virtue of said execution sale and Sheriff’s deed and that he is entitled to recover title and possession of said Lot No. Seven (7) in Block No. Twelve (12) of the McFaddin Second Addition to the City of Beaumont, Jefferson County, Texas, from the plaintiffs herein, John M. Sias and wife, Mrs. Birdie East-ham Sias.”
These findings and conclusions must be considered in determining what questions were decided by the trial court. How, then, are the quoted statements to be construed? These statements, in terms, adjudicate the questions which we considered in determining whether the order of the revivor should have been mentioned in the writ and concerning the effect of the failure to mention this order;, and as we have stated, these questions were matters of law which were thrown up by the proof made in the trial court. Should the statements quoted from the findings and conclusions be limited to matters alleged in the petition? It seems to us that these statements are broader than the petition and must therefore, by reason of T.B.. 67, be referred to the proof. Plaintiffs alleged the following grounds for setting aside the execution sale: (1) the judgment enforced by the writ was dormant; (2) the writ was invalid because it was not supported by a judgment against both of the plaintiffs; (3) the writ was invalid because it issued in favor of (at the insistence off) Ogden Johnson and the said Johnson having been discharged and the receivership having terminated before the writ issued, the case was like that where the plaintiff had died before the issuance of the writ; (4) no notice of the sale was received by the plaintiff Mrs. Sias; (5) this ground seems to be connected in some way with the ground referred to above as No. 2; plaintiffs seem to say that judgment enforced did not support the writ because it was against Mrs. Eastham and the legal existence of Mrs. Eastham terminated when she married Mr. Sias; (6) no notice of sale was published; (7) notice that Mrs. Eastham’s property would be sold was not notice that the separate property of Mrs. Eastham would be sold. Further, plaintiffs alleged that the price paid by the defendant was inadequate and that this inadequacy “coupled with such above set out void and irregular acts in making said sale” caused the sale to be “ineffectual to pass any right or title to said lot from the plaintiffs to the defendant— and that the same should be canceled, set aside and held for naught.” If we have
The questions raised by the argument of the defendant now under consideration must necessarily be determined by the record and the argument is overruled on our construction of the trial court’s findings and conclusions.
Plaintiffs’ motion: * * * Plaintiffs say that the cause ought not to be remanded because defendant Berly, being the owner of the judgment, was charged with notice of the defect in the writ and was, in a sense, responsible for it because he had the writ issued. And we find, in response to plaintiffs’ motion for additional findings that acting through his attorney he did cause the writ to be issued. However, there is no evidence that defendant Berly or his attorney was responsible for the form of the writ, or that either actually knew of the defect. The proof shows nothing except that the writ was caused to issue and that defendant Berly bought the property at the sale under the writ. Berly’s imputed knowledge of the form of the writ thus seems immaterial. The case is like Irvin v. Ferguson, 83 Tex. 491, 18 S.W. 820, where the purchaser was apparently a stranger hut was chargeable with notice of irregularities in the form of the writ because these defects appeared upon the writ itself. These irregularities were, material, not because of the purchaser’s imputed knowledge but because the irregularities tended to cause an inadequate sales price, that is, -because of the effect of the irregularities upon the interests of the debtor. Such a holding necessarily implies that an execution purchaser has a right to prove that the inadequate sales price did not result from an irregularity like that in the writ before us; otherwise, in Irvin v. Ferguson, the court would not have referred to the effect which the irregularities and consideration had upon the sales price. On this issue, we see no reason why a judgment owner who purchases at his own execution sale should be distinguished from a stranger, except where knowledge of the existence of the irregularity is material, as it might have been, for instance, in Ward v. Duer, 70 Tex. 231, 11 S.W. 116. Knowledge of a harmless irregularity docs not make the irregularity any more harmful nor does it necessarily imply fraud. None of the decisions cited by plaintiffs are thought to be in point. Pearson v. Hudson, 52 Tex. 352, is an instance of an irregularity which was materially harmful although it did not affect the sales price of the land.
Plaintiffs also say that the order of revivor was the foundation of the writ and that the failure to mention this order in the writ made the sale void because the writ did not mention the judgment which authorized its issue. However, the writ did refer to the original judgment and it was this judgment which was actually enforced by the writ of execution. The order of revivor was only a part of the foundation of the writ. We adhere to our conclusion that the failure to mention the revivor proceedings was only an irregularity which did not make the sale void and that it is material here only for the reasons stated in our original opinion.
Plaintiffs’ motion is overruled.
Remand is proper because the evidence has not been fully developed.
Plaintiffs have also requested additional findings of fact. The motion is denied except to the extent of the facts found in this and in the original opinion.