Blanks v. Radford (188 S.W.2d 879, 1945)

LESLIE, Chief Justice.

This is a garnishment proceeding occasioned by the issuance of such writ after judgment at the instance of B. M. and O. E. Radford directed to the Citizens National Bank of Abilene, predicated on an original District Court judgment, of date, November 15, 1932, in cause No. 1625 — B in favor of J. M. Radford, now deceased, against C. H. Blanks. Judgment upholding the garnishment was rendered in favor of appellees B. M. and O. E. Radford, and Blanks appeals.

The garnishee bank answered, admitting the defendant Blanks had on deposit in open account the sum of $1,835.16, and further stated that it had in its building and vault a safety deposit box rented to defendant Blanks, but that it did not know the contents thereof. That there were two locks on such box, the garnishee holding the key to one lock and the defendant the key to the other, and that garnishee could not examine the contents of the box without the aid of the other key and did not know what effects, if any, Blanks kept therein. The bank also prayed that Blanks be made a party to this proceeding, that he might present his own defenses.

Said Blanks appeared and moved to quash the garnishment proceeding, for the reason that the contents of the safety deposit box are not “the type or character of effects subject to garnishment under the laws of the State of Texas.” Further answering, Blanks alleged that an original order of sale issued January 10, 1933, on the judgment in 1625 — B; that a sale thereunder of property belonging to him was made February 7, 1933, and the order of sale returned February’8, 1933, showing execution thereof. That thereafter, no valid execution ever issued on said judgment. “That a purported alias execution was prepared by the clerk of this Honorable Court on the 24th day of May, 1937, and a purported pleures execution was prepared by the clerk on September 30, 1937, but said executions were in all things invalid and without force and effect, and did not serve to prevent the judgment upon which the writ of garnishment herein is predicated from becoming dormant, and did not toll the ten year statute of limitation for the reason that at the time of the preparation of said execution, the said J. M. Radford, sole plaintiff in judgment, was then dead; that there was no compliance or attempt at compliance with Article 3775 of the 1925 Revised Civil Statutes, requiring the filing of an affidavit with the clerk of this Honorable Court as to the death of said J. M. Radford, together with a certificate of any lawful court as to the appointment of any representative of the estate of J. M. Radford, or, in the alternative, if there was no administration upon the estate of said J. M. Radford, that no affidavit to said effect was so filed disclosing the lack of necessity for such administration, as a consequence of which failure the clerk of this court was without authority to issue said writs of execution, and same were nullities and did not have the effect of suspending the ultimate dormancy of said judgment on the 10th day of January, 1943, at which time the ten year statute of limitation intervened to forever bar the same.”

Appellees in part controverted the answer of the garnishee bank, insofar as it failed to disclose the contents of the safety deposit box, and alleged that Blanks owned and possessed property sufficient to satisfy the judgment, or balance thereof, and that he keeps such property concealed in said box, and they prayed that the garnishee bank and Blanks be required to answer under oath as to the contents of said safety deposit box.

Trial was before the court without a jury, and at the conclusion of the testimony, judgment was rendered in favor of plaintiffs (B. M. and O. E. Radford) against the bank for the sum of $1,835 16, amount of defendant’s general deposit, and the judgment, in addition, commanded the garnishee bank and defendant Blanks to deliver to the sheriff or any constable so much of the effects ($2,200) in safety deposit box of said Blanks as would be sufficient to satisfy the further unpaid balance of the judgment against him, namely, $483.63, costs, etc.

Said judgment in favor of J. M. Rad-ford in cause 1625 — B was for $1,368.10, with interest, etc. An order of sale and execution issued thereon January 5, 1933, and thereafter returned February 10th, showing levy on property of Blanks, out of which the sum of $200 was realized.

J. M. Radford died July 4, 1933, leaving a will disposing of his interest in the community estate of himself and wife, B. M. Radford, one of the appellees herein. One half of his community interest was given to his wife and the other half to O. E. Rad-ford, the other appellee. Certain persons were made independent executors.

The will was probated August 1, 1933, and in due time the independent executors qualified as such. They filed an inventory and appraisement of the properties of said. estate and showed among the claims that against C. H. Blanks to be community property of J. M. Radford and said wife.

December 18, 1935, Bessie M. Radford and O. E. Radford, individually, and the independent executors of said estate executed an instrument, whereby the latter ■delivered to the beneficiaries under the will the property passing thereunder. Thereupon the office of independent executors terminated, and the instrument evidencing the release of the executors from further responsibilities was duly filed in the Probate and Deed Records of Taylor County.

May 24, 1937, about one and a half years after the termination of said administration, an execution was issued on the judgment in cause 1625 — B, and the execution recites that the judgment formerly obtained by J. M. Radford “is now owned by O. E. and B. M. Radford.” The execution was delivered to the sheriff, who returned the same, showing that he failed to find any property subject thereto.

On September 30, 1937, a pluries execution was issued on the judgment, placed in the hands of the constable, who likewise failed to find any property subject to the same.

No further action was taken on the judgment against Blanks until the present garnishment proceeding of September 20, 1944, based upon the original judgment alleged to be then owned by plaintiffs.

November 24, 1944, prior to trial herein on 'December 7, 1944, and upon agreement of parties waiving formal order of the court, the defendant Blanks, in answer to written interrogatories, stated that he had in said safety deposit box money in excess of $600, and he further stated that the bank had the master key which controlled the door, and “the bank’s key, in conjunction with my key, is necessary to open the door.” On the trial Blanks testified he had $2,200 in the safety deposit box, and that, since the writ of garnishment was served, the bank would not let him have access to the contents of the box. The evidence is that access to the contents of the safety deposit box is gained in the way usual and customary in such instances.

In the light of appellant’s points, we think two controlling questions are presented by this appeal:

(1) Was the judgment in cause 1625 — B valid and subsisting at the time the writ of garnishment was issued?

(2) Were the proceedings in the trial court taken together sufficient to support the judgment for the delivery of said effects of C. H. Blanks shown to be in the safety deposit box and not of a nature exempt by law?

The trial court has made findings of fact and conclusions of law, and among them has found, both as a “fact” and as “a matter of law,” that the judgment was valid and subsisting. That it was not a dormant judgment when this garnishment proceeding was instituted thereon. We first examine the judgment in the light of the fact finding.

It is undisputed that the original order of sale and execution issued January 5, 1933, and that the alias execution issued May 24, 1937, and the pluries execution issued September 27, 1937, and that each was timely issued and placed in the hands of proper officers, etc. These last executions of May and September, 1937, are assailed by appellant on the ground that at the time they were issued plaintiff in original judgment, J. M. Radford, was dead, and that no affidavit, as required by Articles 3775 and 3776, R. C. S. 1925, had been filed with the clerk as a predicate for the issuance of said executions. If such contention is shown to be correct, the judgment was dormant and not valid and subsisting when the attempt was made to base the present garnishment proceeding thereon, September 20, 1944. That is, the judgment was barred by limitation (10 years) this last date.

Whether or not such affidavit was filed was a question of fact presented by the pleadings and the evidence (if there be any contrary evidence at all) and before the trial court for determination. The existence of such affidavit was an evidentiary fact bearing upon the ultimate fact (dormancy of the judgment) and it was resolved against the appellant by the court’s judgment amounting to a finding and conclusion that the judgment was valid and subsisting when this garnishment proceeding was instituted. The court having so found, we think it becomes immaterial whether this proceeding is direct or collateral, and that in a measure the matter is immaterial upon whom rested the burden of proof.

We shall, however, further examine the nature of this proceeding and the testimony adduced.

In the case of a deceased owner of a judgment, Articles 3775 and 3776, R. C. S. 1925, require that certain affidavits, etc., be filed as a basis for execution, etc. Article 3775 has several times been construed by the appellate courts of this state. Scott v. Lyons, Solomon & Co., 59 Tex. 593, 594; Fowler v. Burdett, 20 Tex. 34; Holman v. Chevaillier’s Adm’r, 14 Tex. 337, 338.

From the Scott case we have this holding: “After the death of the sole plaintiff an execution could issue on the judgment in behalf of his administrator only upon his complying with the statute. It is the settled law of this state that the filing with the clerk of the affidavit of the death of the plaintiff, and the certificate of the appointment of an administrator, are conditions precedent to the authority of the clerk to issue an execution upon the judgment in the name of the administrator. Holman v. Chevaillier’s [Adm’r], 14 Tex. 338; Fowler v. Burdett, 20 Tex. 34. And, as there are conditions precedent to authorize the clerk to issue the execution, if the statute is not complied with in this respect, the clerk would have no authority for issuing the writ, and it would be held invalid.”

These authorities are in effect the same, but the meaning of the statute is obvious and in accordance with the construction given.

There was no direct testimony introduced as to the filing of said affidavit as a basis for the alias and pluries executions, but, as stated, it conclusively appears that they were issued and placed in the hands of officers for execution. These executions are in evidence. These facts carry the presumption that in issuing said executions the clerk at that time (1937) complied with the law in the performance of such official duty and acted upon the authority of the required affidavit.

“The law presumes, until the contrary is shown, that every public official will discharge the duties imposed upon him by the law.” 17 T. J. p. 276, § 5.

“There is a presumption in favor of the regularity of official acts, and when a public official discharges or undertakes to discharge a duty with which he is charged by law, it will be presumed, in the absence of evidence to the contrary, that he did so rightfully and in a lawful manner, and that he acted within, and not in excess of, his power and authority.” 17 T. J. p. 278, § 76. See also 22 C. J. p. 130, § 69, note 77; 31 C.J.S., Evidence, § 146.

The trial court before whom the case was being tried was warranted in relying upon this presumption until the contrary was shown. City of San Antonio v. Newnam, Tex.Civ.App., 218 S.W. 128; Underwood v. Pigman, Tex.Com.App., 32 S.W.2d 1102; Brown v. Bonougli, 111 Tex. 275, 232 S.W. 490; Ocean Accident & Guaranty Corporation v. May, Tex.Com.App., 15 S.W.2d 594; Clements v. Texas Co., Tex.Civ.App., 273 S.W. 993; Zarate v. Cantu, Tex.Civ.App., 225 S.W. 285.

As corollary to the above presumption or proposition, “It is the generally accepted view of courts and text book writers that the presumption places upon the party against whom it operates the burden of producing evidence.” 13 Texas Law Review 55, and many authorities there cited.

So much for the presumption and its legal effect. We now examine the testimony offered by appellant Blanks in his effort to meet and discharge the burden cast on him by the presumption to produce testimony counter to the same. The evidence in rebuttal to the presumption is, in the main, if not exclusively, that of Roy Skaggs, District Clerk of Taylor County since January, 1939. He testified at the trial to the effect that he and his chief deputy had, at the request of appellant’s attorney, recently examined the papers in the original cause, 1625 — B, as well as his office, in search for an affidavit in compliance with said statute article 3775 et seq. and that he was unable to find any affidavit setting forth the death of said J. M. Radford, or that no administration was pending on his estate and none necessary. In substance, his testimony is that “after searching the records” it was his “conclusion” that no such affidavits “were in the office” at that time.

Miss Belle Welborn was the District Clerk in 1937, when the alias and pluries executions were issued by her, but she was not called to testify concerning the filing of such affidavit as her authority for issuing said executions. .

W. E. Lessing, attorney for B. M. and O. E. Radford in the present cause, an attorney for J. M. Radford in his lifetime, was on the witness stand in the trial of the present cause, but gave no testimony concerning the', making and filing of any such affidavit as a basis for the alias and pluries executions, and neither did appellant’s attorney propound any question to him concerning his possible knowledge of the making and filing of such affidavits with the clerk at that time and as a prerequisite to the issuance of said executions which were delivered to him.

For the reasons and upon the authorities hereinafter set forth, we are of the opinion that Skaggs’ testimony, of so limited, remote and negative nature, should not be regarded as affording any evidence in nature sufficient to cause said presumption (in favor of the filing of such affidavit) to vanish. But if we be mistaken in that respect, then the entire evidence offered and relied on by appellant in contradiction of and to overcome the effect of such presumption did no more than raise an issue of fact which the trial court has obviously considered with care and resolved in favor of appellees, thereby necessarily making a direct and affirmative finding that the clerk issued the alias and pluries executions regularly upon, the authority of such affidavit as required by said article of the statute.

It is not easy to interpret and appraise the opinions of our various appellate courts on the nature, character and effect of the testimony necessary to be advanced by the one against whom such a presumption operates. Empire Gas & Fuel Co. v. Muegge, 135 Tex. 520, 143 S.W.2d 763, 768, is regarded as a leading recent authority. A portion of that opinion pertinent in appraisal of such testimony here under consideration is as follows:

“It follows that the presumption as to the ownership of the truck arising from the registration and the presumption as to its use in transporting the ditching machine arising from the permit are not to be regarded as having raised an issue or issues of fact for the jury’s determination if such presumptions were met by positive rebutting proof.

“There is conflict in the decisions as to the degree and character of proof necessary to rebut or overcome such presumption. By some it is held that the presumption disappears when met by positive proof or substantial proof or by evidence which the jury has the right to believe or by the uncontradicted testimony of the defendant. Others hold that the presumption is not overcome by the testimony of the defendant alone or by the testimony of interested witnesses or by evidence which, the jury has the right to disbelieve. See the authorities discussed in notes, 42 A.L.R. 907-908; 74 A.L.R. 954-958; 96 A.L.R. 637-640; McCormick & Ray’s Texas Law of Evidence, pp. 51, 52, Sec. 34. The authorities are, however, in almost