Askey v. Power

Court of Appeals of Texas

Askey v. Power

21 S.W.2d 326, 1929 Tex. App. LEXIS 1038

CourtCourt of Appeals of Texas

DecidedJune 29, 1929

DocketNo. 12174. [fn*]

StatusPublished

Cited by7 cases

This text of 21 S.W.2d 326 (Askey v. Power) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Askey v. Power, 21 S.W.2d 326, 1929 Tex. App. LEXIS 1038 (Tex. Ct. App. 1929).

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Opinions

CONNER, C. J.

W. H. Askey instituted suit in the district court of Wise county against T. J. Power, administrator of the es[327]*327tate of D. K. Power, deceased, and Alice Power, surviving widow of D. L. Power, and Jessie Power, Henry Power, Opal Power, Yarbrough Power, Elisha Power, Willie D. Power, and Frank Power, legal heirs of D. L. Power, alleging in his third amended orig-' inal petition, upon, which the trial proceeded, that on December 1, 1923, the plaintiff Askey recovered a judgment against the said D. L. Power for the principal sum of §3,540.40, with interest thereon from said date in the sum of $2,278.80 at the «rate of 10 per cent, per annum, and in the sum of $538.30, at the rate of 8 per cent, per annum, and in the sum of $723.12 at the rate of 6 per cent, per annum; that about December 3, 1923, plaintiff applied to the clerk of the district court of Wise county for an abstract of sa"id judgment, which was duly made and delivered to plaintiff; that on December 4, 1923, plaintiff presented said abstract to the clerk of the county court of Wise county for record in the proper judgment lien records of said county, which was on the same day by said clerk duly filed and recorded on page 231 of the judgment lien records; that at the time of the recording of said judgment and abstract thereof, the same was duly and properly indexed alphabetically, showing the names of both the plaintiff and the defendant and the book and page upon which the same was recorded, in all things as provided by law, as shown by said records and the indexes thereof.

It was alleged by virtue of the filing and recording and indexing of the abstract referred to that plaintiff acquired a statutory and legal lien on all real estate owned or thereafter acquired by said D. L. Power. It was further alleged that about June 1, 1924, execution had been duly issued on said judgment and the sum of $345.25 wajs collected by virtue thereof, but that all of the balance of said judgment, including principal and interest, was due and unpaid.

It was further alleged that D. D. Power died intestate about June 8, 1924; that T. L. Power was duly and legally appointed administrator of said estate, and “on or about November 1, 1925, plaintiff presented his claim against said estate based on said judgment and abstract lien to said administrator for allowance which claim was in all things refused and rejected by said administrator, and on November 19,1925, plaintiff instituted this suit to establish said claim and enforce said lien against the lands belonging to said estate of said D. L. Power, deceased.”

The petition then set forth a description of five separate tracts of land, aggregating approximately 1,383 acres, which it was alleged D. L. Power owned on December 4, 1923, at the time of recording and indexing of said abstract of judgment, and the prayer was for a recovery on final hearing judgment for his debt, principal, interest, and costs of suit, with a foreclosure of his judgment lien on all the lands described; and further, in the alternative, that if it be found that plaintiff was not entitled to this relief, then plaintiff have judgment against all defendants establishing his debt with interest and costs, and the judgment be certified to the county court of Wise county sitting in matters of probate, to be 'there classified and enforced according to law, and for general relief.

The plaintiff in a second count further pleaded that his suit, as originally instituted on November 19, 1925, sought relief on the grounds stated in his first count, and that in answer thereto the defendants Alice Power and T. J. Power, the administrator, answered, among other things, that the abstract of plaintiff’s judgment had not been properly filed, recorded, or indexed, as required by law, so as to create a lien on the lands described in plaintiff’s petition; and that, in event it should be found that the abstract of judgment had been defectively recorded or indexed, then he have judgment against the sureties, E. B. Gibson and others • (who had already been made parties), on the official bond of the clerk, for any failure Of duty or neglect on the part of the clerk to properly record and index his abstract of judgment, etc.

The defendants named pleaded a general demurrer, a general denial, and special demurrers and special matters of defense not thought necessary to set forth.

A jury was impaneled, and after the introduction of evidence in behalf of plaintiff toad been offered and submitted, and after the plaintiff toad closed his testimony, the defendants requested the court to give a peremptory instruction to the jury in their behalf. The court indicated that in his opinion the evidence failed to establish plaintiff’s alleged judgment lien, whereupon the plaintiff requested the court to reopen the case and permit him to further prosecute the same against the bondsmen on the clerk’s official bond. This was refused, and the court gave to the jury the peremptory instruction requested by defendants, and, upon return of the verdict in accordance with the instruction, entered a judgment that plaintiff take nothing by his suit and that all defendants be discharged with their costs. From the judgment so rendered, the plaintiff toas duly prosecuted this appeal.

As we view the record, three material questions are presented for our determination. They are:

(1) Did the trial court err in concluding that the evidence was insufficient to establish the judgment lien declared upon by appellant?

(2) Did the court abuse his discretion in refusing to permit appellant to withdraw his announcement and to further prosecute the suit against the sureties on the clerk’s bond?

[328]*328' (3) Did the court err in refusing to render judgment- against the administrator establishing the judgment as a claim against the estate?

We will undertake to dispose of these questions in the order in which they have been stated.

Appellant offered in support of his alleged-judgment lien the following abstract as delivered to ihim:

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