173 S.W. 979

Needham v. Cooney

Decided February 4, 1915

Court of Appeals of Texas · decided 1915-02-04

1. Execution <@=>234 — Sale — Payment of Bid — Credit on Judgment. The rule that judicial sales must be for cash does not prevent the sheriff making a sale on execution from accepting a bid by the judgment creditor accompanied by a tender of credit on the judgment for the amount and payment of costs in cash. [Ed. Note. — For other cases, see Execution, Cent. Dig. § 658; Dec. Dig. <§=>234.] 2. Execution <§=>234 — Sale — Payment of Bid — Credit on Judgment. A judgment creditor who purchases at execution sale is not entitled to pay his bid by credit on the judgment where there are other liens on the property of equal dignity with his lien, or a contest over the proper disposition of the proceeds. [Ed. Note. — For other cases, see Execution, Cent. Dig. § 658; Dec. Dig. <§=>234.] 3. Attachment <§=>6] — Property Subject-Judgment. Under Bev. St. 1911, art. 254, providing that attachment may be levied only on property subject to execution, it cannot be levied on a judgment in favor of the attachment defendant so as to deprive him of his right 'to give credit on the judgment for the amount bid by him at the sale. [Ed. Note. — For other cases, see Attachment, Cent. Dig. §§ 162-160; Dec. Dig. <@=>61.] 4. Execution <§=>234 — Sale — Payment of Bid — Credit on Judgment — Attachment. The fact that a writ of attachment against a judgment creditor which was held by the sheriff, who sold land under the judgment, might be levied by him on any money coming into his hands as a result of the sale, does not authorize him to deny the judgment creditor the right to bid at the sale and give credit on the judgment for the amount of the bid; since the sheriff’s primary duty in making the execution sale is to protect the judgment creditor’s rights, not those of a stranger to the action. [Ed. Note. — For other cases, see Execution, Cent. Dig. § 658; Dec. Dig. <@=>234.] 5. Execution <§=>231 — Setting Aside Sale-Wrongful Bejection of Bid. Where a sheriff at execution sale wrongfully refused to accept the judgment creditor’s bid accompanied by a tender of credit on the judgment, and, instead, sold the property to a lower bidder, the creditor is not restricted to an action against the sheriff for damages, but may recover the title from the purchaser at the sale. [Ed. Note. — For other eases, see Execution, Gent. Dig. §§ 652, 653; Dec. Dig. <@=>231.] 6. Execution <§=>256 — Setting Aside Sale— Beturn of Payment. Where a judgment creditor under whose execution several sections of land had been struck off to a purchaser whose bid was lower than the creditor’s as to all but three sections brought suit while the sheriff still retained the money to set aside the sale as to all but the three sections, and to recover the amount paid for them, he need not offer to repay the money paid to the sheriff for the other sections. [Ed. Note. — Eor other cases, see Execution, Cent. Dig. §§ 723-733 ; Dec. Dig. <§=>256.] 7. Appeal and Error <§=>263 — Questions Reviewable — Peremptory Instructions— Exceptions. Acts 33d Leg. c. 59, prescribing the manner of taking exceptions to instructions, applies to a peremptory instruction for one of the parties, where such instruction is given in writing, and there is no showing that counsel did not have an opportunity to examine it before it was read to the jury, and the giving of a peremptory instruction cannot be reviewed on appeal unless that act is complied with. [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1516-1523, 1525-1532; Dec. Dig. <§=>263.] 8. Appeal and Error <§=>719 — Questions Reviewable — Peremptory Instruction — Fundamental Error. The giving of a peremptory instruction does not raise a question of fundamental error or such an error apparent of record as requires consideration when not assigned and presented in the manner required by the rules. [Ed. Note. — For other cases, see Appeal and Error. Cent. Dig. §§ 2968-2982, 3490; Dec. Dig. <§=>719.] 9. Trial <§=>181 — Peremptory Instruction-Waiver op Error — Fundamental Error. Under Acts 3od Leg. c. 59, which provides that any error in the general charge which is not pointed out and excepted to in the manner therein prescribed is waived and approved, error in giving a peremptory instruction, even if fundamental, is waived, unless exception thereto is taken in the prescribed manner; since even a fundamental error may be waived. [Ed. Note. — For other cases, see Trial, Cent. Dig. § 406; Dec. Dig. <§=>181.] 10. Evidence <§=>370 — Documentary Evidence-Execution by Agent —Proof of Authority. An assignment of a judgment executed by an agent of the judgment creditor is not admissible in evidence until the authority of the agent to assign the assignment has been proved. [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 1559, 1560, 1562-157S, 1592; Dee. Dig. <§=>370.] 11. Evidence <§=>143 — Relevancy. Evidence of ratification of an agent’s acts which has no probative force on that issue was properly excluded. [Ed. Note. — For other cases, see Evidence, Cent. Diig. §§ 424, 426-428; Dee. Dig. <§=>143.] 12. Execution <§=>323 — Proceeds of Sale— Lien. Under Rev. St. 1911, art. 254, providing that attachment may be levied upon any property on which execution may be levied, and article 3740, providing that a levy on personal property is made by taking it into possession if the defendant is entitled to possession, or by giving notice of the attachment to one entitled to possession, an attachment lien attaches to the proceeds of an execution sale on a judgment in favor of the attachment defendant as soon as they come into the hands of the sheriff, who held both the execution and the attachment writs, and the sheriff cannot be compelled to ■ pay the money to the attachment defendant and thereby destroy the lien. [Ed. Note. — For other cases, see Execution, Cent. Dig. §§ 956-959; Dec. Dig. <®=>323.] 13. Sheriffs and Constables <§=>13íL-Pbo-ceeds of Execution Sale — Recovery — Necessary Parties. In a suit to set aside a sale under execution of certain tracts which were struck off to one not the highest bidder, and to recover from the sheriff the amount paid for other tracts sold, which amount he was retaining because he held an attachment against the judgment creditor, the attachment plaintiffs are necessary parties to that part of the suit to compel the payment of the money; since their interests will necessarily be affected by any decree that may be rendered. [Ed. Note. — For other cases, see Sheriffs and Constables, Cent. Dig. §§ 275-277; Dec. Dig. <§=>134.] 14. Appeal and Error <§=>187 — Exceptions — Necessity — Fundamental Error — Ab - sence of Parties. The rendering of a decree without the presence of necessary parties is a fundamental error which can be considered on appeal, though not raised by-any party, and it cannot be waived by the parties. [Ed. Note. — For other eases, see Appeal and Error, Cent. Dig. §§ 1184-1139; Dec. Dig. <§=> 187.] 15. Appeal and Error <§=>187 — Presenting Questions Below — Necessary Parties. Where the petition discloses on its face that there are necessary parties who were not made parties to the suit, the objection may be raised for the first time on appeal. [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1184-1189; Dec. Dig. <§?> 187.]' 16. Sheriffs and Constables <§=>134 — Action — Recovery of Proceeds of Execution — Parties. Adverse claimants or lienholders need be made parties to a suit to compel the sheriff to deliver to the judgment creditor personal property which has come into his hands by virtue of an execution only where the circumstances ^are such that delivery of the property by the "sheriff would destroy the lien or claim. [Ed. Note. — For other cases, see Sheriffs 'and Constables, Cent. Dig. §§ 275-277; Dec. Dig. <§=>134.] 17. Appeal and Error <§=>1172 — Disposition of Case — Reversal in Part. Under Court of Appeals rule 62a (149 S. W. x), providing that, where an error affects a part only of the controversy, and the issues are severable, the judgment shall be reversed only as' to the part affected by the error, a decree which allowed plaintiff, the judgment creditor, to recover from the purchasers at an execution sale lands which the sheriff had wrongfully struck off to defendants, though their bid was less than plaintiff’s, and also to recover from the sheriff the amount paid by the purchasers of other tracts, and which was erroneous as to the latter relief, because creditors .who had given the sheriff a writ of attachment against the plaintiff were not made parties, will be reversed only as to the latter part, and affirmed as to the rest. [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4555-4561; Dec. Dig. <§=> 1172.] On Rehearing. 18. Stipulations <§=>3 — Subject-Matter —Exceptions—Necessity—Waiver. Acts 33d Leg. c. 59, requiring objections to the court’s charge to be specifically presented before it is read to the jury and exception thereto taken, is intended to protect _ and guard against the commission of errors in the trial and to avoid unnecessary appeals, and agreements to waive its provisions should not be respected by the courts. [Ed. Note. — For other cases, see Stipulations, Cent. Dig. § 2; Dee. Dig. ¿=33.] 19. Judgment @=>18- — Conformity to Pleadings — Issues Between Defendants. In a suit by a judgment creditor to recover property sold to a purchaser whose bid was lower than the creditor’s, a judgment in favor of the purchaser against the sheriff for the amount paid, which was not supported by the pleadings, will be reversed. [Ed. Note. — For other cases, see Judgment, Cent. Dig. §§ 84-87; Dec. Dig. <¿=318.] Harper, C. J., dissenting in part.

Relies on St. Louis Southwestern Ry. Co. of Texas v. Wadsack · 52 Tex. Civ. App. 75 - Hart v. Hunter · Cook v. Pollard

Good law ✅— No negative treatment on recordhow we know

Affirmed in part and reversed and remanded in part, and… · Decided 1915-02-04

How this case has been cited

Cited by 50 later decisions — most recently March 2000 · most notably Barmore v. Darragh (1921), Durham v. Scrivener (1923)

45 state decisions

Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.

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HARPER, C. J.

¶1 I concur in the opinion of the majority of the court that the judgment shall be affirmed as rendered in the lower court, in setting aside the sale to Needham, decreeing the sale to Cooney, and to credit the amount of his bids upon his judgment against Cole; but differ with my Brethren in their holding that Van Deren et al., as attaching creditors of Cooney, are necessary parties to this action. Mr. Pomeroy defines “necessary parties” to be “those without whom no decree at all can be effectively made determining the principal issues in the cause.”

¶2 I recognize that, if there were a number of attaching creditors, as in the case of Cook v. Pollard, 70 Tex. 723, 8 S. W. 512, it would be necessary to make all of them parties in order to determine the priority of *987 lien, and in order to distribute tbe funds held to all those interested.

¶3 Or, as in the ease of Buffalo, etc., v. Bruly, 45 Tex. 6, where a partition of land was prayed for, and it was discovered that other parties had an interest in the land, no valid decree of partition could be decreed without all persons interested being made parties, and, if X am correct in my analysis of the cases cited in the original opinion, they all have some similar question which determined the issue of necessary parties.

¶4 No person, except Cooney and Van Deren et al., claim any interest in the fund. Sheriff Harrison expressly disclaimed any personal interest in it, and there is a suit pending between Van Deren and Cooney in the same court in which their respective rights can and should be determined. After a decree in the latter suit is entered, if it be a judgment for plaintiff, foreclosing their attachment lien, then Harrison would be directed to deliver the money accordingly. If defendant, Cooney, recovers, then the attachment would be dissolved, and by motion, under article 3775, Rev. Civ. Stat. 1911, the sheriff would be ordered to deliver to Cooney. Upon failure to do so, he and his bondsmen are subject to suit. De la Garza v. Booth, 28 Tex. 478, 91 Am. Dec. 328.

¶5 In my opinion, it is not proper nor expedient for Van Deren et al. to be required to mix their — an entirely independent — cause of action with this one. They may already have prosecuted their suit to judgment, or might be able to do so before this case is finally disposed of upon appeal, etc. The authorities assert the rule to be that in such’ case the hearing as to Harrison should be postponed to await the action of the court in the case of Van Deren v. Cooney. Rieden v. Kothman, 73 S. W. 425; Corpus Juris, vol. 1, pp. 55, 56; Ruling Case Law, vol. 1, pp. 16, 17; 20 Cyc. 1109.

¶6 The cause should be reversed as to that portion against Harrison, for $5,282, and the proper practice is that the trial court should postpone further hearing as to this fund to await the outcome of the cause of Van Deren v. Cooney, thereby avoid complicating wholly different and separate causes of action, and avoiding two judgments against Harrison for the same money, to which he makes no claim in his own right.

¶7 On Rehearing.

HIGGINS, J.

¶8 [18] It is insisted that, in view of an agreement appearing in the record, we erred in applying the provisions of chapter 59, Acts Thirty-Third Legislature, because it was agreed by the parties that the case should be tried “under the old law.” Referring to the agreement, we find it is simply a waiver of verified pleadings required by chapter 127, Acts of said Legislature (Vernon’s Sayles’ Ann. Civ. St. 1914, arts. 1827-1829b) and does not relate to chapter 59. Furthermore,- the provisions of chapter 59 are intended to protect and guard against the commission of errors in the trial court’s charge, and, to avoid unnecessary appeals and reversals, agreements to waive its provisions should not be respected by appellate or trial courts. Railway Co. v. Wadsack, 166 S. W. 42.

¶9 A vigorous attack is also made upon the correctness of the position assumed in overruling the assignments complaining of the peremptory instruction. We adhere to the view expressed in the original opinion. But in any event it would follow from our holding upon the other assignments that the peremptory instruction was properly given.

¶10 [19] Verdict and judgment were rendered in Needham’s favor against Harrison for $2,-196; the same being the amount paid by Needham at the execution sale for the nine sections decreed to Cooney. Upon motion for rehearing our attention for the first time is directed to the fact that this portion of the verdict and judgment finds no support in the pleadings. An inspection of the pleadings discloses that Needham made no attempt to state a case against Harrison, and asked no relief whatever against him. With the pleadings in this condition, the judgment in his favor against Harrison must be regarded as a nullity. Hart v. Hunter, 52 Tex. Civ. App. 75, 114 S. W. 882; Railway Co. v. Skecter, 44 Tex. Civ. App. 105, 98 S. W. 1064; Watt v. Parlin, etc., 44 Tex. Civ. App. 439, 98 S. W. 428. It is the duty of this court to now set it aside.

¶11 The order heretofore made disposing of this case will be therefore amended, so as in all things, to affirm the judgment of the court below, except: First, the said judgment in Needham’s favor against Harrison for said sum of $2,196; and, second, as respects the issue of Cooney’s right to recover of Harrison the money in the latter’s hands derived from the foreclosure sale on October 7, 1913, in cause No. 781, entitled P. Albert Cooney v. E. Leslie Cole et al.

¶12 In these two respects only is said judgment reversed and remanded. Needham’s right to recover said $2,196 shall be tried if proper pleadings be filed raising the issue. The issue indicated between Cooney and Harrison shall be tried when the necessary parties have been joined.

¶13 Except as herein indicated, the motions for rehearing are overruled.

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Status

Disposition: Affirmed in part and reversed and remanded in part, and…

Case posture

Disposition: Affirmed in part and reversed and remanded in part, and motion for rehearing overruled, except as to the judgment between the defendants.
Posture: Appeal from District Court, Reeves County; Dan M. Jackson, Judge. Action by P. Albert Cooney against Leslie A. Needham and others. Judgment for the plaintiff, and defendants appeal. Affirmed in part and reversed and remanded in part, and motion for rehearing overruled, except as to the judgment between the defendants.

Source: CourtListener

Court

Court of Appeals of Texas