Mouser v. First Nat. Bank of El Campo

Court of Appeals of Texas

Mouser v. First Nat. Bank of El Campo

197 S.W. 1000, 1917 Tex. App. LEXIS 861

CourtCourt of Appeals of Texas

DecidedOctober 10, 1917

DocketNo. 5881.

StatusPublished

Cited by2 cases

This text of 197 S.W. 1000 (Mouser v. First Nat. Bank of El Campo) 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.

Bluebook

Mouser v. First Nat. Bank of El Campo, 197 S.W. 1000, 1917 Tex. App. LEXIS 861 (Tex. Ct. App. 1917).

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Opinion

FLY, C. J.

In 1915, appellee recovered judgment against S. P. Smiley and Levina *1001 Smiley for the sum of $2,289.45, in the district court of Wharton county, of which sum $1,822.60 is still unpaid, and afterwards procured a writ of garnishment against appellant, who answered; that he was indebted to the Smileys in the sum of $380, which was secured by a lien for material on two certain lots of land in El Campo, Wharton county. Judgment was rendered against appellant, upon his answer, for $380, but by mistake the lien for material was not foreclosed against the lots. On February 10,1916, appellee filed an application to correct the judgment, which was rendered on November 22, 1915, so as to foreclose the lien, and on May 15, 1916, the court rendered judgment in favor of appellee against appellant for $380, and foreclosed the lien for material.

[1-3] If the suit be one for the correction of a mistake in the judgment, it is sustained by the statute. Rev. St. art. 2016. No evidence aliunde the record in the case was necessary, or was permitted, but the answer of appellant in the garnishment suit furnished a sufficient basis for the amendment or correction of the judgment. Coleman v. Zapp, 105 Tex. 491, 151 S. W. 1040; Yarbrough v. Etheredge (Tex. Civ. App.) 163 S.#W. 998. As said by the Supreme Court in Coleman v. Zapp, the trial court had the inherent power to correct an evident mistake in its judgment. The court found that a mistake of omission had occurred in the failure to fore-, close the lien. Appellant admitted he owed the debt and that it was secured by a lien, and it is equitable and just that he should be compelled to pay the debt, even though a foreclosure is required to accomplish this object.

The case can be viewed as an original suit on a judgment, and the judgment rendered can be justified under that class of case.

The judgment is affirmed.

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FLY, C. J.

In 1915, appellee recovered judgment against S. P. Smiley and Levina *1001 Smiley for the sum of $2,289.45, in the district court of Wharton county, of which sum $1,822.60 is still unpaid, and afterwards procured a writ of garnishment against appellant, who answered; that he was indebted to the Smileys in the sum of $380, which was secured by a lien for material on two certain lots of land in El Campo, Wharton county. Judgment was rendered against appellant, upon his answer, for $380, but by mistake the lien for material was not foreclosed against the lots. On February 10,1916, appellee filed an application to correct the judgment, which was rendered on November 22, 1915, so as to foreclose the lien, and on May 15, 1916, the court rendered judgment in favor of appellee against appellant for $380, and foreclosed the lien for material.

[1-3] If the suit be one for the correction of a mistake in the judgment, it is sustained by the statute. Rev. St. art. 2016. No evidence aliunde the record in the case was necessary, or was permitted, but the answer of appellant in the garnishment suit furnished a sufficient basis for the amendment or correction of the judgment. Coleman v. Zapp, 105 Tex. 491, 151 S. W. 1040; Yarbrough v. Etheredge (Tex. Civ. App.) 163 S.#W. 998. As said by the Supreme Court in Coleman v. Zapp, the trial court had the inherent power to correct an evident mistake in its judgment. The court found that a mistake of omission had occurred in the failure to fore-, close the lien. Appellant admitted he owed the debt and that it was secured by a lien, and it is equitable and just that he should be compelled to pay the debt, even though a foreclosure is required to accomplish this object.

The case can be viewed as an original suit on a judgment, and the judgment rendered can be justified under that class of case.

The judgment is affirmed.

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197 S.W. 1000, 1917 Tex. App. LEXIS 861, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mouser-v-first-nat-bank-of-el-campo-texapp-1917.

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