Ficklin v. McCarty

Texas Supreme Court

Ficklin v. McCarty

54 Tex. 370, 1881 Tex. LEXIS 34

CourtTexas Supreme Court

DecidedMarch 8, 1881

DocketCase No. 1311

StatusPublished

Cited by3 cases

This text of 54 Tex. 370 (Ficklin v. McCarty) is published on Counsel Stack Legal Research, covering Texas Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Ficklin v. McCarty, 54 Tex. 370, 1881 Tex. LEXIS 34 (Tex. 1881).

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Opinion

Moore, Chief Justice.

It was held by the court below, as shown by bill of exceptions, that though more than three years had elapsed between the issuance of executions on the 10th of April, 1875, and on the 15th of April, 1878, the judgment rendered October 8, 1874, was still a lien on the property of the defendant in execution. This ruling is in direct conflict with the law, as' held by this court in the case of Barron v. Thompson (3 Tex. Law Journal, p. 755), and necessarily requires a reversal of the judgment.

The court seems to have failed to observe the distinction which exists between diligence which prevents a judgment from becoming dormant, so that it will not warrant' the issuance of an execution, and that which is necessary to preserve its hen. There can be no pretense that this ' judgment was dormant at the issuance of its last execution, but on the other hand it is clear that no diligence had been used to preserve its hen. And if the land in controversy was subject to sale in satisfaction of the judgment under this execution, it is because of the fact that appellant was not a bona fide purchaser for value, and not because of an existing hen at the date of the levy.

The judgment is reversed and the cause remanded.

Reversed and remanded. '

[Opinion delivered March 8, 1881.]

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Moore, Chief Justice.

It was held by the court below, as shown by bill of exceptions, that though more than three years had elapsed between the issuance of executions on the 10th of April, 1875, and on the 15th of April, 1878, the judgment rendered October 8, 1874, was still a lien on the property of the defendant in execution. This ruling is in direct conflict with the law, as' held by this court in the case of Barron v. Thompson (3 Tex. Law Journal, p. 755), and necessarily requires a reversal of the judgment.

The court seems to have failed to observe the distinction which exists between diligence which prevents a judgment from becoming dormant, so that it will not warrant' the issuance of an execution, and that which is necessary to preserve its hen. There can be no pretense that this ' judgment was dormant at the issuance of its last execution, but on the other hand it is clear that no diligence had been used to preserve its hen. And if the land in controversy was subject to sale in satisfaction of the judgment under this execution, it is because of the fact that appellant was not a bona fide purchaser for value, and not because of an existing hen at the date of the levy.

The judgment is reversed and the cause remanded.

Reversed and remanded. '

[Opinion delivered March 8, 1881.]

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Bluebook (online)

54 Tex. 370, 1881 Tex. LEXIS 34, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ficklin-v-mccarty-tex-1881.

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