Shirey v. Trust Co. , 69 S.W.2d 835 ( 1934 )

I feel constrained to construe the article of the statute in hand as supporting the sufficiency of the abstract in evidence, although the case of McGlothlin v. Coody (Tex.Civ.App.) 39 S.W.2d 133; Id. (Tex.Com.App.) 59 S.W.2d 819, would render such abstract, if applied to it, ineffective as a judgment lien.

It is firmly settled that a lien does not arise until the judgment is properly abstracted and indexed in the very provisions of the statute. Nye v. Moody, 70 Tex. 434, 8 S.W. 606; Pierce v. Wimberly, 78 Tex. 187,14 S.W. 454; Evans v. Frisbie, 84 Tex. 341, 19 S.W. 510; and other cases; 34 C.J. § 834, p. 575. The point determinative of the lien in the present appeal is entirely that of whether or not the statute relating to the docketing of judgments by transcript or abstract when applied to the judgment rendered in cause No. 103369 in the district court of Harris county, requires, in order to make the judgment lien effective, such abstract to contain the names of every individual person made a party to the action in respect to whom final adjudication in any particular was made, irrespective of whether they were persons against whom a money judgment was rendered. The judgment in entirety made adjudication, as to parties, matters determined and relief granted, in two adjudications or branches of the case. Firstly, there was adjudicated the payment of the definite and certain sum of money of $14,731.62 with 8 per cent. interest per annum by the particular parties enumerated. All of the defendants and each of the defendants liable at all in personal judgment for money were adjudged to be liable, separately and jointly for the certain sum of money specified. Secondly, the remaining sections of the judgment dealt with and made final adjudication as to all parties enumerated therein as respects their right to hold or to have an enforceable lien against certain shares of corporate stock. The two adjudications can, in effect, be separated and distinguished, the one being for payment of a specific sum of money, and the other being not for the payment of money but in rem. Article 2211, R.S. (amended by Acts 1931, c. 77, § 1 [Vernon's Ann.Civ.St. art. 2211]), specially provides that "judgment may, in a proper case, be given for or against one or more of several plaintiffs, and for or against one or more of several defendants or interveners." Although only one final judgment in entirety is contemplated by that article of the statute, yet within the meaning of the article adjudication upon each independent branch of the case may be deemed in proper instances not a joint but a several judgment. Cotton v. Coit,88 Tex. 414, 31 S.W. 1061. It is in the light of such judgment in its entirety that the sufficiency of the abstract of the judgment in evidence to create a lien under the provisions of the statute is to be considered. While the statute which fixes a judgment lien is to be construed strictly, yet this does not mean that it may not be given the full meaning that the language employed reasonably imports. 26 Tex.Jur. § 520, p. 360; Kingman Texas Implement Co. v. Borders (Tex.Civ.App.)156 S.W. 614. The provisions of the statute are literally set out above. The language of the statute is unambiguous in respect of what the abstract of the judgment must show. As expressly provided in that article such "abstract" or brief statement must set forth or contain a "showing" of (1) "the names of the plaintiff and of the defendant in such judgment," and (2) "the number of the suit in which the judgment was rendered" and (3) "the date when such judgment was rendered," and (4) "the amount for which the judgment was rendered and balance due thereon," and (5) "the rate of interest specified in the judgment." Article 5447. It is this authenticated abstract of judgment that the county clerk is required, when it is presented to him, to file, record, and alphabetically index. Article 5448, R.S. Does the provision "the names of the plaintiff and of the defendant in such judgment" require, in order to make the lien effective, the abstract to contain the name of every individual person made a party to the action in respect to whom final adjudication in every particular of the judgment in its entirety was made? Do the words "such judgment" refer and mean to be applicable only to a money judgment, or as the case may be to a section of a judgment adjudicating only respecting the payment of money? The language does not absolutely require the construction, as the necessary and unavoidable one, that every defendant in a judgment in its entirety should be enumerated in the abstract, although such defendant be not adjudged personally liable in any wise for payment of the sum of money. Rather does the wording and the purpose of the provision more reasonably point to the restrictive construction that the abstract need contain only the names of the defendants against whom a money judgment was rendered. It was manifestly a money judgment only that was in view. The fundamental provision which shall create the lien as is evident, is the recital that a specified amount for which the judgment was rendered remains unpaid. The lien is based upon the amount of a purely money judgment remaining unpaid. That is the only character of judgment that does or can create the lien. The abstracting and recording of a judgment that has been paid is ineffectual to create a lien. Huggins v. Johnston, 120 Tex. 21,35 S.W.2d 688. And too, as will be observed, the provisions of the statute do not require the abstract to contain facts as to all the entire judgment. The provisions clearly reflect the intention not to require every particular of the judgment in its entirety. All that was designed or is necessary was enumerated. Everything else, not enumerated, must be regarded as deemed unnecessary to the docketing of the judgment. It was simply deemed essential to the creation of a lien that there shall be a judgment which is final and subsisting for the payment of a definite and certain sum of money by the defendants enumerated. It is a fundamental doctrine that a judgment which by its terms cannot be enforced against the property of the defendant by execution cannot become a lien thereon. Hagan v. Chapman, 1 Pennewill (Del.) 445, 41 A. 974. Then, why in the present case is there the necessity of incorporating in the abstract the separate portion and independent branch adjudicating the rights as to the corporate stock? The parties to that branch or section of adjudication are entirely unaffected with the liability of the particular defendants adjudged to be liable to pay the money judgment. The money judgment can be carried into execution without their being personally liable. In the enforcement of a deficiency judgment the execution is not required to run in the name of any defendant except the defendant against whom the personal judgment was rendered. Holt v. Holt (Tex.Civ.App.) 59 S.W.2d 324. The two adjudications in the present judgment can be separated and distinguished, the one for the payment of a specific sum of money supporting the lien, while the other does not. Therefore it is believed the judgment lien may not be held invalid upon the ground of noncompliance with the terms of the statute; that the section of the judgment adjudicating payment of a certain specified sum of money furnished the exact course the clerk of the court in which the judgment was rendered was to pursue in making out the transcript or abstract. The construction thus given to the article of the statute under consideration has support in the similar ruling in Fuller v. Hull, 19 Wash. 400, 53 P. 666, 667. In that case the statutory provision required the transcript of the judgment to contain "the names at length of all the parties." The contention in the case was that the transcript did not comply with the statutory provision mentioned. The court ruled: "It does, however, appear that the names of Samuel Bertelson and Anna M. Bertelson were shown by the transcript. They were the mortgagors, and the only persons against whom a money judgment was rendered. No personal claim of any character was made against the other parties to the action, and it was not necessary that their names should have appeared upon the transcript."

In such construction of the statute as given hereinabove, as respects the names of all the defendants the abstract shall contain, the notice thereof given by the present abstract meets legal requirement. As set forth in Spence v. Brown, 86 Tex. 430, 25 S.W. 413, 415: "Most of the requisites of an abstract show that the purpose of its registration is not only to give notice of the right conferred by the record and index, but also to inform all persons interested where they may easily find the judgment itself, with all other papers bearing on the question of its validity. The source of information thus pointed out is a public record, which imports verity, and is not subject to the control of any private person."

The omission to include in the abstract that portion of the judgment awarding costs may not be regarded as rendering the lien ineffective. While costs are an incident, yet they are not a part of the amount of a judgment. Houston T. C. Railway v. Red Cross State Farm, 91 Tex. 628,45 S.W. 375; Wicker v. Jenkins, 49 Tex. Civ. App. 366, 108 S.W. 188. And the provisions of the article of the statute do not include or apply to costs or a judgment for costs only. Unless cost is distinctively included in the terms of the statute the provisions of the statute creating a judgment lien could not be made to apply to costs or a judgment for costs only.