Cox v. Nelson , 223 S.W.2d 84 ( 1949 )

WILLIAMS, Justice.

On January 5, 1937, Thomas F. Cox was awarded a judgment against John M. Nelson for $12,404 in a Smith County district court. A writ of execution was not issued within twelve months from its date. No action of scire facias or for debt upon the judgment was ever instituted. An abstract of above judgment was filed on January 7, 1937, and again filed on August 26, 1947, both in the record of judgment liens in the County Clerk’s Office in Harrison County, Texas. A writ of execution was issued for the first time on January 10, 1946. On May 23, 1946, within ten years from date of the judgment, an alias execution’ was issued and placed in the hands of the sheriff of Harrison County, Texas, who in due time- made his return in which he reported, after inquiry of Nelson and search of the tax rolls, “no property found subject to execution.” On May 18, 1948, more than ten years after date of above judgment, Cox filed suit in the nature of a bill of discovery against Nelson and on January 13, 1949, filed another and separate action in which Nelson and wife were named defendants, wherein he sought to foreclose his asserted judgment lien against certain realty, described in the petition.

Upon above agreed facts the trial court gave effect to the provisions of art. 5532, Vernon’s Texas R.C.S., and concluded that at the time the present suits were filed the judgment had become barred and so being barred could not constitute the basis for any ancillary remedy or the enforcement of the judgment sought by Cox in the actions here involved. The trial court held the execution issued on May 23, 1946, to be void and without legal effect to revive the judgment for the reason as recited in the judgment that (1) no execution was issued within twelve months from January 5, 1937, the date of the judgment; and (2)- no action for debt or scire facias on the judgment had been brought thereon within ten years from January 5, 1937.

The appeals by Cox from an adverse judgment in each case have been consolidated by this court as both involve the controlling issue whether or not by reason of the issuance of the alias execution on May 23, 1946, it prevented the judgment dated January 5, 1937, from becoming dormant prior to the filing of the present actions on May 18, 1948, and January 13, 1949, respectively.

We are of the opinion that the judgment of January 5, 1937, was not dormant at the time of filing the present suits, being controlled by the provisions of art. 3773, Vernon’s Texas Ann.R.C.S., which reads: “If no execution is issued within ten years after the rendition of a judgment in any court of record, the judgment shall become dormant and no execution shall issue thereon unless such judgment be revived. If the first execution has issued within the ten years, the judgment shall not become dormant, unless ten years shall have elapsed between the issuance of executions thereon, and execution may issue at any time within ten years after the issuance of the preceding execution.” It is to be observed that above statute provides that a judgment in any court of record shall become dormant only in the event no execution is issued within ten years after rendition of the judgment. The present actions are premised upon an execution issued within the ten year period. The second sentence or paragraph delays dormancy for another ten years from May 23, 1946,. which extends the date over and beyond the time the present suits were filed. Christian v. Sam R. Hill Lumber Co., Tex.Civ.App., 113 S.W.2d 616, 617.

Art. 5532, supra, provides: “A judgment in any court of record, where execution has not issued within twelve months after the rendition of the judgment, may be revived by scire facias or an action of debt brought, thereon w.ithin ten . years after date of- such judgment, and not after.”

The present action is not one of scire facias or for debt upon the judgment and neither litigant so contends. Hence we are here concerned with the clause in art. 5532, reading-: “Where execution has not issued within twelve months” and the clause in Art. 3773, which reads: “If no execution is issued within ten years.” “Article 3773, R.S.1925, originally did require that execution be issued within twelve months after date of the judgment, or the judgment would become dormant, but in 1933 said article was amended, Vernon’s Ann.Civ.St. art. 3773, permitting execution to be "issued on the judgment at any time within ten years after the date, of the judgment.” 113 S.W:2d 617. Art. 5532, supra, enacted in 1841, if in conflict, would not by implication repeal this act of 1933. The reverse is likely the result of the 1933 amendment as indicated in the language in the emergency clause of Senate Bill No. 127, Laws 1933, c. 144, § 2, amending art. 3773, which reads: “The fact that the law now provides a judgment shall become dormant • unless execution shall have issued within twelve months from its rendition, causing unnecessary and useless expense, and aclding unnecessary -costs, creates an emergency ⅜ ⅜ ⅜ ))

Commerce Trust Co. v. Ramp, 135 Tex. 84, 138 S.W.2d 531, 536, and Zummo Packing Co. v. Cotham, 137 Tex. 517, 155 S.W.2d 600, both by the Commission of Appeals, vigorously" urged by appellee in support of the trial court’s action, involved action to revive a judgment after the expiration of the ten year period, where an execution had not been issued within ten years from the date of judgment. Above" authorities do not control the facts of this record. Execution here did issue within the ten year period. An action to revive the judgment is not here involved.

The judgments in both cases are reversed and the causes remanded.