Willis v. Keator

On Motion for Rehearing.

[6] It is insisted by appellee that we erred in holding that this is a suit to enforce the county court judgment, and we are referred to paragraphs 9 and 10 of the petition, in which fraud and a conspiracy between Willis and Barnett is alleged. No evidence whatever was introduced to sustain, this allegation, and of course the trial court made no finding upon it; nor was any request made for such finding. If appellee’s right to recover rests upon the allegations contained in said paragraphs then the judgment in his favor is unsupported by any evidence.

[7] We do not controvert the proposition that when the property covered by the mortgage was sold and the proceeds deposited in the registry of the court the lien attached thereto; but that principle has no application to this controversy. No supersedeas bond having been filed, it became the duty of Willis to pay to Moran or his assignee, Barnett, the money in his hands. The rendition of a subsequent judgment, ordering Alexander to pay the sum to appellee could not render the payment by Willis of the fund to Barnett an illegal act if, under the law, it was his duty to make such payment at that time. Appellee states in his motion that he cannot, by amendment, allege any additional facts entitling him to recover, and since the case has been fully developed he insists that we reverse and render the judgment, instead of remanding it, if we adhere to our former holding.

Believing we have properly disposed of the controversy, the motion for rehearing is overruled in part, and the judgment is reversed, and here rendered for appellants.