Roman v. Goldberg

BARCUS, J. On May 30, 1927, appellees obtained a judgment in. the county court against appellant foi^OO, Jirom which he appealed, giving a supersedeas bond. On July 20, 1927, appellees obtained and had recorded an abstract of said judgment. On August 971927,* appellant placed in escrow $240 for said purpose and obtained from appellees a release of the judgmentJLien. Appellant filed this suit Tor damages which he claims to have suffered by reason of the abstract of judgment being recorded. The trial court sustained a general demurrer to appellant’s petition and dismissed the suit. The only question for determination is whether a plaintiff who causes an abstract of adjudgment from which" the defendant .has_appealed and given a supersédeas bond is liable for damages suffered by the defendant bv reason of the jmlgmentJhaying. been recorded in the judgment records. Article 3770 of the Revised Statutes provides that an execution may issue on a judgment at any time after the court adjourns. Articles 2275 and 3772 of the Revised Statutes provide that if the defendant appeals and gives a supersedeas bond, the execution 'of the judgment shall be stagehand that no execution shall issue pending the appeal. Article 5447 provides that the clerk of the court shall, upon request of the party in whose favor the judgment was rendered^ give him an abstract thereof. Article 5448 provides that the county clerk shall, when the abstract of judgment is delivered to him, promptly record and index same. In construing article 2255 of the Revised Statutes, the courts have uniformly held that the date of the judgment is the day when same was rendered., andTnoF'fhe" date when the motion for new trial was overruled. St. L., S. F. Ry. Co. v. Stapp (Tex. Civ. App.) 171 S. W. 1080; Cooper v. Yoakum, 91 Tex. 391, 43 S. W. 871; Pope v. Wedge worth (Tex. Com. App.) 221 S. W. 950; Williams v. Knight Realty Co. (Tex. Civ. App.) 217 S. W. 755. If the judgment dates from its rendition, then the pafty-in whose favor same is rendered could, under articles 5447 and 5448, obtain an abstract thereof and have same recorded before the motion for new trial was acted upon. ( Appellant’s contention is* that by his having filed the supersedeás’bond, appellees were not entitled to take any, steps looking toward the collection of the judgment or fixing a lien on any property. This question, we think, has been decided adversely to appellant’s contention Semple v. Eubanks, 13 Tex. Civ. *900 App. 418, 35 S. W. 509; Smith v. Kale 32 Tex. 290; Thulemeyer v. Jones, 37 Tex. 560. In the case of Semple v. Eubanks, supra, the court state d: “We conclude that an appeal with superse-deas does not destroy the* force of the judgment pending the anneal, but merely susñéñcts~íts execution, and it does not preclude 'piamHiFTirom' taking the necessary steps, and securing a judgment lien; or, if he has taken such steps before supersedeas, it does not destroy their effect in the event of affirmance. * * ⅜ When we look to the decisions of this state, we find them consistent only with the idea that the judgment is merely suspended in reference to process-”,. Under the provisions of the various statutes herein referred to, we do not think a judgment creditor is prohibited by .láwT'pSñS-ing appeal on supersedeas bond, from obtaining and having recorded an abstract of the judgment in order to fixTalieñ on any property that the judgment debtor may own. The only thing which the statutes prohibit where a supersedeas bond is given is that the execution mustJie-^tayed. pending the, appeal. Appellees, having the statutory right to obtain an abstract of the "judgment andliive same recorded pending the appeal, would not be liable for any damages that might be occasioned by reason of a lien being thereby created on the property of appellant. ' We have examined appellant’s assignments of error, and same are overruled. The judgment of the trial court is affirmed.