Millican v. Ware (84 Tex. 308, 1892)

COLLABD, Judge,

Section A. — This suit was brought by the appellee H. J. Ware, against appellants M. J. and J. W. Millican and others, to annul and set aside and forever enjoin further proceedings under a judgment rendered in the District Court of Comanche County, on the 23d of February, 1875, a moneyed judgment in favor of appellants and against appellee and others, and to set aside sales made of appellee’s landed property under execution upon the judgment, issued October 27, 1886. It was contended below by Ware, that at the time the execution issued the judgment was barred by the statute of limitation of ten years; that it was dormant, and could not support an execution.

There is no statement of facts in the record, but there are conclusions of fact and law as filed by the court, to whom the cause was submitted for trial without a jury. There is a brief on file for appellants, but none for appellee.

There were many issues on the trial below, and the findings of the court are quite lengthy; but it is only necessary for us to notice such as concern this appeal.

The court found, that on the 23d day of February, 1875, in the Comanche County District Court, M. J. and J. W. Millican, husband and wife, recovered judgment against Frank Mathison and the sureties on his injunction bond, H. J. Ware (plaintiff herein), John Carnes, J. V. Townsend, and other sureties, for $6139.42, the judgment being community of Millican and wife. We now copy a part of the findings: “That the following executions and none other have been issued under deed by virtue of said judgment against said Mathison, H. J. Ware, et ah, of date February 23, 1875, to-wit: March 8, 1875; May 25, 1875; November 15, 1875; October 19, 1876; June 1, 1883; April 19, 1886; October 27, 1886. That under the executions of 1875 and 1876, proceeds of property of various sureties sold thereunder amounted to some $1600 or $1700, which were credited on said judgment; that the execution of June 1, 1883, was levied upon certain real property in ICinney County, Texas, the value or description of which the proof fails to show, nor is there legal proof to show what become of the property so levied upon under the execution of 1883. However, from the parol testimony of plaintiff and assumption and argument of counsel, it seems that the sale made thereunder was vacated and set aside for reasons not appearing on this trial in the District Court of Kinney County.

“It does not appear that the execution of the 19th of April, 1886, which was issued to Val Verde County, Texas, ever came to the hands of the officer or was ever executed or returned, it being found simply among the papers of the cause without return. The execution of October 27, 1886, was issued to the sheriff or constable of Val Verde County, Texas, for the sum of $6139.42, principal, with interest at the rate of 8 per cent per annum from February 23, 1875, and the further sum of $418.26, cost of suit, with the following credits, to-wit: April 6,1875, $1605.93; January 15, 1879, $200; July 3,1883, $150. This writ came to hand of the sheriff of Val Verde County, as shown by sheriff’s returns, the 6th day of January, 1887, was levied on the property described in plaintiff’s petition, and after twenty days notice the said sheriff on the first Tuesday in February, 1887, sold all of said property to George S. Walton, who was then and there acting for and in behalf of defendants herein, the Millicans, Cowan, Germany, and Walton, for the sum of $1050, which was paid by entering a credit of that sum upon the execution. I further find, that the defendants herein, Cowan, Germany, and Walton, at and prior to the said sale under execution of October 27, 1886, and prior to the issuance of said execution, were part owners of the Millican judgment by reason of transfer or contracts from the Millicans to them; but the terms of which and considerations for which do not appear from the evidence.”

The court then finds that certain of the sureties were, for considerations, released from liability on the judgment, but finds as the law on the question, that such releases did not have the effect to discharge plaintiff Ware from liability on the judgment. Other conclusions of law and fact are mentioned, but they need not be now considered, and we do not now pass upon them, approve or disapprove them; but the fourth conclusion of law is material to the issue on appeal, and we give it: