Patton & Wellborne v. Mrs. S. M. Collier, 90 Tex. 115

GAINES, Chief Justice. The following questions have been certified for our determination by the Court of Civil Appeals for the Second Supreme Judicial District: “Appellants sued.appellee in the County Court of Wichita County on several promissory notes amounting to $260.29. The notes contained this clause: ‘And ten per cent attorney’s fees if collected by law or if placed with attorney for collection. Value received.

Given for a bill of furniture, an itemized bill of which is hereto attached, marked Exhibit A, upon which the vendor’s lien is reserved, and in default of payment of this note all of said notes shall mature. Ho. 8. (One of 12.) S. M. Collier.’ “W. P. Skeen was judge of the County Court, and was a brother-in-law to J. J. Ofiel, the judge having married Ofiel’s sister. The law firm of Boyd & Ofiel, of which J. J.

Ofiel was a member, filed and prosecuted the suit to judgment in the County Court. “The petition on the notes contained this allegation: ‘That the plaintiffs have been compelled to employ Boyd & Ofiel, attorneys at law, to bring suit for their collection, and have agreed to pay them the amount, of money mentioned in said notes, as attorneys, for their services.’ “The judgment, which was by default, contained the following recital: ‘And it further appearing to the court that plaintiffs had employed Boyd & Ofiel, attorneys, to enforce payment of said notes by instituting suit, and agreed to pay them said ten per cent specified in said notes on the default of the defendant to pay same at maturity as contracted in said notes.’ Then follows judgment in favor of appellants, for $260.29, which amount includes the attorney’s fees, and also the judgment recites that, ‘It further appearing to the court that said notes were given for the payment of the following described personal property, upon which the vendor’s lien is expressly reserved and retained in said notes for the payment of the same, to-wit: (Here follows an itemized statement of the furniture for which the notes were given), it is ordered, adjudged and decreed by the court, that plaintiffs’ hen on the said furniture be foreclosed, and that an order of sale issue “directing the sheriff or any constable of Wichita County to seize and sell the same as under execution, and that he apply the proceeds thereof” to the payment of the-judgment,’ etc. “This judgment was entered December 5, 1893, and on June 13, 1894,. upon motion of Patton & Welborne, with due notice and resistance on the part of Mrs.

Collier, it was corrected and re-entered by the County Court, Judge Skeen again presiding, so as to leave out the clause reciting that Boyd & Ofiel were to have the ‘said 10 per cent specified in said, notes,’ the judgment on the motion reciting that this clause was inserted in the original judgment by mistake, and that it was not true.

Ho other-proof that Ofiel was interested was made. “An order of sale was issued on January 3, 1894, which contained the same- description of the property as found in the judgment, and was delivered to the constable on the 5th day of January, 1894, who advertised it on that day and notified Mrs. Collier that he had the order of sale and had advertised the furniture for sale, to be sold on the 15th day of January, 1894, and that she could keep the property until sale day, but he did not take possession of the property by seizing it and taking it from her.

On the sale day he came to make the sale and she opened the room doors, where the furniture was, going from room to room, and he sold it just. as it was set up in the rooms, and the same was delivered to the purchasers, who came back after the sale and carried it away. Mrs. Collier bid in some of the furniture, 'but she testifies that she had to do so, to have a bed to sleep on.

She did not object to the sale, nor the want of a levy, nor to the property’s being carried away. “This suit is to recover from the plaintiffs in the order of sale the value of the goods taken from her by the constable under said order, and their liability is based upon the two grounds involved in the following questions, which we deem proper to .certify to your Honorable court: “1. Was the judgment in the County Court void by reason of the relationship existing between the county judge and the plaintiffs’ attorney Ofiel? Howell v. Budd, 27 Pac. Rep., 747; Winston v. Masterson, 87 Texas, 200 (27 S. W.

Rep., 768); Hodde v. Susan, 58 Texas, 389; Newcome v. Light, 58 Texas, 147; Land Co. v. Howe, 3 Texas Civ. App., 318. “2. Was the sale void for want of a formal levy of the order of sale as required by statute in case of executions? Rev. Stats. 1895, art. 2349; Hastings v. Morris, 70 Texas, 29; 2 Freeman on Ex., sec. 274; Freeman on Void Judicial Sales, sec. 26; Dickinson v. Mail, 32 S. W. Rep., 378; Dickinson v. Mail, 31 S. W. Rep., 1083; Brown v. Lane, 19 Texas, 203; Gunter v. Cobb, 82 Texas, 598; Newman v. Hook, 90 Am. Dec., 378; 1 Freeman on Ex., secs. 274, 339.” I.

The original judgment in question was not void as between the plaintiffs and the defendants. Boyd & Ofiel, the plaintiffs’ attorneys,, were not parties to the suit. It is evident that these names were mentioned in the petition merely for the purpose of alleging the happening of the contingency upon which the plaintiffs under the contract were to . become entitled to the additional ten per cent upon the amount of the notes. So much of the original judgment as sought to give them a judgment for the attorneys’ fees, was a nullity. In Dunlap v.

Southerlin, 63 Texas, 38, the court say: “A judgment rendered against a person not before the court would be void, and it is not perceived that a judgment against a defendant in court at the suit of named plaintiffs, upon a cause of action accruing to them alone, in favor of a person in no manner a party to the action, can stand upon any higher ground.” From the statement accompanying the question, we do not think that it appears that the attorneys had any pecuniary interest in the recovery.

The allegation in effect is that, in consideration of their bringing the suit, the plaintiffs had agreed to pay them for their services as attorneys the amount of money mentioned in the notes as attorney’s fees. It is not that the plaintiffs had assigned to them the ten per cent. The amount is referred to merely for the purpose of showing the compensation which the plaintiff had promised to pay for bringing the suit. If it had appeared that plaintiff had assigned to his attorneys a part of the note, we should have had a different case.

But a simple interest in the amount of the recovery, such for example as would have disqualified the attorneys from testifying in the case at common law, would not have disqualified the judge from sitting on account of his relationship to one of them. Winston v. Master-son, 87 Texas, 200. The court, at the instance of the plaintiffs and upon notice to the opposite party, had the power to amend the entry of the judgment at a subsequent term. Eev. Stats. 1895,

article 1356. Had that power been erroneously exercised, which does not appear, the amended entry could not be attacked in this collateral action. II. We are also of opinion, that a levy by the constable was not necessary to the validity of the sale. In Lloyd v. Wyckoff, 11 N. J.

L., 227, the court say: “The expression ‘to levy on goods and chattels/ is one that has been long used in the English law books, and in those of our neighboring states; and wherever found, it means to do the act, or acts, by which a sheriff sets apart and appropriates, for the purpose of satisfying the command of his writ, a part or the whole of the defendant's goods and chattels. The usual mode of levying in England, is by seizing

part in the name of the whole. Tidd's Practice, 924.” One object of the levy is to set apart from the effects of the execution debtor a sufficient amount of his property, subject to forced sale, to satisfy the judgment against him. Another is to secure the property against its disposition by the defendant in the writ during the interval between its seizure and its sale. Since a decree establishing a lien upon certain specific properly and an order directing its sale for the payment of the judgment designates the property to be sold, it is evident that a levy is not necessary for that purpose.

In ease of personal effects, it is proper for the protection of the plaintiff in the foreclosure decree, that the officer should have power to seize and hold the property until a sale can be effected; and, in case the officer fail to exercise such power and it should he removed before sale, he would doubtless be liable to the plaintiff for any loss which may result from his failure to make the seizure. But it is not perceived that any injury could accrue to the defendant from his being permitted to enjoy the possession of the property until the day of sale.

The only decisions upon the precise point to which we have been referred are in accordance with this view. Ewing v. Hatfield, 17 Ind., 513; Smith'v. Barnes, 8 Kan., 197.