Full opinion text
CONNER, C. J. Appellants instituted this suit against appellee in the distinct court of Ector county on the 29th day of January, 1909, to foreclose a judgment lien on sections 15, 16, 21, and 22, in block 32, of that county, which appellee had purchased from one Kelly Hogg. The trial before the court without a jury resulted in a judgment in appel-lee’s favor. The material errors assigned relate to the action of the court in excluding, on the ground of variances, from the petition the abstract of judgment, by virtue of which appellants assert the lien. As alleged, appellants, “on the 28th day of April, 1899, were partners in business under the firm of B. Blankenship & Co., and as a firm they recovered a judgment against C. M. Clark and Kelly Hogg in the county court of Smith county, Tex., for the sum of $1,007.72; said judgment being made final on the day and date last above written.” The abstract offered in evidence gave the number of the suit, the names of Blankenship & Buchanan,. B. Blankenship and M. G. Buchanan, as-plaintiffs, C. M. Clark, S. G. Dawson, and Kelly Hogg as defendants, the date of the judgment as April 18, 1899, and as rendered in the county court of Smith county, for the sum of $1,007.72, and $23.25 costs, with rate of interest at 10 per cent., giving the total amount due at the time of the filing of the-abstract as $1,030.97. We feel ourselves unable to .say that the variances thus appearing are not substantial. The statute (Sayles’ Ann. Civ. St. 1897, art. 3285) states the requisites of an. abstract of judgment; among other things necessary to be stated being the names of the parties, the amount due, and the date thereof. The lien afforded is strictly statutory, and it has been frequently held that to be valid the abstract must truly show both the-amount of the judgment and its true date. Evans v. Frisbie, 84 Tex. 341, 19 S. W. 510 Willis v. Sanger, 15 Tex. Civ. App. 655, 40 S. W. 229; Noble v. Barner, 22 Tex. Civ. App. 357, 55 S. W. 382; Rushing v. Willis, 28 S. W. 921; Anthony v. Taylor, 68 Tex. 403, 4 S. W. 531; Gullet Gin Co. v. Oliver & Griggs, 78 Tex. 182, 14 S. W. 451. The allegations of date, amount, and names, therefore, are material, and it is elementary that the proof must correspond to the material allegations made in the pleadings. But if it be said that the conclusion is too technical, we find ourselves unable to say that the error requires a reversal of the judgment for yet another reason. The plaintiff was permitted to read in evidence certified-copies of the judgments relied upon. The first is as follows: “1,571. B. Blankenship & Co. v. C. M. Clark et al. This, the 28th day of January, 1898, came on to be heard the above-entitled and numbered cause, and the plaintiffs and the defendant S. T. Dawson appeared by their respective attorneys, and the application of the defendant S. T. Dawson for a continuance of this cause as to him having been presented to the court, said application for a continuance as to the defendant Dawson is granted; and it further appearing to the court that the defendants C. M. Clark and Kelly Hogg, though duly cited to appear and answer in. this behalf, have wholly made default; wherefore, plaintiffs ought to recover against said defendants Clark and Hogg their damages by occasion of the premises; and it appearing to the court that the cause of action is liquidated and proven by an instrument in writing, and, further, that the damages sustained by plaintiffs amount to the-sum of one thousand and seven dollars and seventy-two cents ($1,007.72). It is therefore ordered, adjudged, and decreed by the court that the said plaintiffs B. Blankenship & Co., a firm composed of B. Blankenship and M. G. Buchanan, do have and. recover of and from the defendants O. M. Clark and Kelly Hogg, the sum of $1,007.72, with interest thereon at the rate of 10 per cent, per annum from this date, together with all their costs in this behalf expended, for which they may have their execution.” The second is thus: “1,571. B. Blankenship & Co. v. C. M. Clark et al. April 18, 1809. This day came on to be heard the above-entitled cause, and the plaintiffs and the defendant S. T. Dawson appeared by their attorneys, and thereupon, it appearing to the court that plaintiffs no longer desired to prosecute their said suit against the defendant S. T. Dawson, but wished to dismiss as to him without prejudice to their rights, it is therefore ordered, adjudged, and decreed by the court that suit as to defendant S. T. Dawson he and same is hereby dismissed without prejudice to the rights of plaintiffs, and that he go hence with his costs in this behalf expended against the plaintiffs, B. Blankenship & Co., a firm composed of B. Blankenship and M. G. Buchanan, and that said S. T. Dawson has his right of execution against the said plaintiffs for all costs by him expended in this suit.” The judgment first set forth against C. M. Clark and Kelly Hogg, the vendor of ap-pellee’s land, is evidently not final, because of its failure to dispose of the issues between the plaintiffs in the suit and the defendant S. T. Dawson, as to whom the cause was continued. The statutes (Kev. St. 1895, arts. 1283, 1337) provide for interlocutory judgments by default in certain cases, but specifically declare that there shall be but one final judgment given in the suit, and in Boles v. Dinthicum, 48 Tex. 220, it was expressly held that a final judgment by default was unwarranted. A proper practice would have been, upon the dismissal of the suit as to Dawson, to have made the default judgment against Clark and Hogg final. Bateman Bros. v. Poole, 84 Tex. 405, 19 S. W. 552; Kingsland & Douglass Mfg. Co. v. Mitchell et al., 36 S. W. 757. This was not done, however, and there was therefore no warrant for abstracting the judgment. We conclude on the whole that no material error was committed in the trial below, and the judgment must be affirmed.