
    D. Eastham, Ex’r, v. Sallis, Adm’r, and Ralston.
    (Case No. 1677.)
    1, Probate matters — Jurisdiction.— The probate court, in classifying claims against an estate, secured by mortgage upon land, has jurisdiction to inquire and determine which of several claims secured by lien on the same land is entitled to priority of payment.
    3. Judgment nuno pro tunc. — A judgment mine pro tune cannot afiiect the lien acquired by a third party on property to which the original judgment, if properly rendered, would have attached a lien, when the lien of such third party was secured after the original judgment, and before the entry thereof nune pro tune was made.
    3. Judgment.— When a final judgment is rendered, which alone can create a judgment lien, it must be entered of record in such form as to convey notice of its existence, in order to affect the rights of third parties dealing with the judgment creditor.
    4. Final judgment.— An entry of a court record declaring the default of the defendant; that by reason thereof the plaintiff ought to recover his damages ; that the clerk was ordered to assess such damages; that this was done; and which then, in appropriate language, directed the issuance of execution against each party for the costs by them severally incurred, is no final judgment. A judgment is final only when it contains the decision or sentence of the law upon the matter contained in the record; and the fact that the clerk was referred to as having assessed the damages at a certain sum is not sufficient; it must be followed by the sentence of the law declaring that the party do recover that sum.
    5. Final judgment.— A judgment for costs which does not dispose of the subject matter of the suit is no final judgment.
    Error from Washington. Tried below before the Hon. I. B. McFarland.
    The opinion states the case.
    
      J. T. Swearengen, for plaintiff in error,
    cited: R. S., arts. 2025-2027; Toliver v. Hubbell, 6 Tex., 166; Moore v. Hillebrant, 14 Tex., 312; Neill v. Hodge, 5 Tex., 487; Baker v. Rust, 37 Tex., 242; Acts 11th Leg., p. 118; Wright v. Rhodes, 42 Tex., 523; Hargrove v. De Lisle, 32 Tex., 170; Firebaugh v. Ward, 51 Tex., 409; Rankin & Shatzell v. Scott, 12 Whart., 117.
    
      Breedlove & Ewing, for defendant in error.
   Stayton, Associate Justice.

The statement of the nature and result of the suit, as made by counsel for plaintiff in error, is as follows: “P. Eastham obtained judgment, January 11, 1878, against D. E. Sallis in the district court of Washington county, and had the judgment recorded in Lampasas county, where the defendant D. E. Sallis owned one hundred and ninety-five and one-half acres of land.

“ D. E. Sallis executed a mortgage on the same land to J. R. Ealston May 23, 1878, to secure a note executed by him to Ealston, and which was recorded in Lampasas county.

“The judgment in favor of Eastham was recorded March 19, 1878, and the mortgage to Ealston was recorded June 29, 1878, more than three months afterwards.

“ D. E. Sallis was insolvent and owned no other land besides the ene hundred and ninety-five and one-half acres. In 1880 he died, and on the 2d of April, 1881, appellees Ohappell and W. G-. Sallis qualified as his administrators.

“ Eastham presented the administrators a certified copy of the judgment which had been recorded- in Lampasas county for their acceptance. This was rejected. Thereupon plaintiff brought suit to have it established.

“ The plaintiff dismissed this suit and filed a motion to have the judgment corrected nunc fro tuna, which was sustained October 27, 1881.

“ The claim then comprising a certified copy of the original judgment, with its certificate of registration in Lampasas county, and the order of the district court awarding the same, was presented to the administrators and accepted by them as a just claim against the estate, within less than ninety days after the first presentation. It was then filed with the clerk of the county court, and was classed as a third class claim on the 21st of November, 1881, by the county judge, who indorsed his approval on both the copy of the original judgment recorded in Lampasas county, and on the certified copy of the order amending the same nunc pro tunc.

“ Ealston’s note and mortgage was also presented, and classed as a claim of the third class. Each claimant filed an application for sale of this land in the county court in satisfaction of his lien, and each opposed the application of the other. The two applications and objections were heard together in the county court, which rendered judgment in favor of Ealston, ordering the land sold in satisfaction of his lien.

“ From this judgment Eastham appealed to the district court.

“ The district court rendered judgment September 7, 1883, giving Ealston priority of payment, but classing Eastham’s claim as a claim of the third class, and entitled to the residue of the proceeds of the sale of the one hundred and ninety-five and one-half acres, .after satisfaction of Ealston’s claim.

“ B. Eastham died October 10th, leaving plaintiff in error executrix of his will, who brings the above judgment before this court for revision.”

It is claimed that the action of the probate court in classifying the Eastham judgment was conclusive, and that the court in this-cause had no power to inquire as to the priority of the claims of the respective parties.

The classification of the respective claims could not have the effect of precluding the probate court from making an inquiry as te the right of the one creditor to have priority of payment over the other out of the proceeds of the sale of the property, even if they both had liens upon it.

If both parties held debts secured by mortgage or other lien, if properly probated, they would each be classed as claims of the third class; yet the one secured by the mortgage first executed or lien first' acquired, there being no fact to postpone it, would be entitled to priority of payment out of the proceeds of the sale of the property ; and the fact that they had been properly classified could not affect the power of the probate court to inquire as to which one was entitled to be first paid. R. S., 2037.

There is a seeming inconsistency in the ruling of the court below in holding that the claim of Eastham was secured by lien, and at the same time postponing it to the claim of. Ralston; for if the claim of Eastham be secured by lien, it must be by reason of the record of the judgment made in Lampasas county prior to the time the mortgage to Ralston was executed, for it does not appear that the judgment in favor of Eastham as amended was ever recorded in Lampasas county.

This, however, cannot affect the merits of the controversy between the plaintiff in error and Ralston; the administrators of Sallis’ estate have not assigned error, and it is, therefore, unnecessary to. consider the effect of the classification of the claim on them. The judgment as originally rendered in favor of Eastham was presented, with its certificate of record and creditor’s affidavit, to the administrators of Sallis’ estate, and was by them rejected, and never after-wards established by suit.

The judgment as amended was also presented, and it was allowed, approved and classified as a claim of the third class, and it seems, that at the same time this was done, the county judge also approved and classed as a claim of the third class the judgment as originally rendered and as recorded in Lampasas county.

The judge who tried the cause found that the judgment as origi nally rendered, as well as the amended judgment, was presented to. the administrators of the estate, and that both were allowed at the same time.

This, will be considered as true, and hence no inquiry need be made as to the necessity for presenting such paper as may evidence a lien as well as the instrument which evidences the debt for allowance and approval, if they be on detached papers.

It is insisted that the record of the judgment as it stood prior to its amendment gave a lien upon the land in Lampasas county from the date of its record in that county; and also that the judgment when amended related to the judgment of January, 1878, and thus validated the record and gave the lien from the date of registration, if it did not exist prior to the amendment.

Assignments of error present these propositions.

It is certainly true, if the judgment as recorded in Lampasas county did not give a lien upon the land there situated, that its subsequent amendment could not give jt an effect which before it had not.

The very purpose for which registration of the judgment is required is to give notice to such persons as may deal with the judgment debtor, in regard to the property upon which the lien is acquired, of the existence of the lien.

The amended judgment, never recorded, could not give such notice, nor defeat a right acquired long before the amendment was made.

Judgments nunc pro tunc are never permitted to affect the rights of such persons as have acquired rights between the time a judgment is really rendered and the time at which the judgment is entered upon the minutes now for then; such persons having no notice of the judgment. Freeman on Judgments, 66; Jordan v. Petty, 5 Fla., 326; McCormick v. Wheeler, 36 Ill., 114; Graham v. Liznor, 4 B. Mon., 18; Acklen v. Acklen, 45 Ala., 609; Ligon v. Rogers, 12 Ga., 281; Perdue v. Bradshaw, 18 Ga., 287.

It is well settled that no judgment other than a final judgment can give a lien. Freeman on Judgments, 340, and citations. The statute expressly restricts such effect to final judgments. Art. 1866, p. 118.

When such a judgment is rendered it is necessary that evidence of it be placed in such form as to give notice of its existence to persons dealing with the judgment debtor, or as to them it cannot be operative in fixing a lien upon property. A judgment really rendered by a court, but not properly entered upon its record, as between the parties to it, may be the basis of right, but to affect third persons with notice of a lien given by a judgment, or its registration, its form must be such as to convey notice of its existence.

The entry originally made in the minutes of the district court of Washington county shows: 1st. That the court declared the default of Sallis, and that by reason thereof the plaintiff ought to recover his damages. 2d. That the court ordered the clerk to assess the damages, and that this was done, and that the court directed, in language appropriate to a judgment, that execution issue against each party for the costs by them severally incurred.

There is, however, no declaration in the record of “the decision or sentence of the law pronounced by the court upon the matter contained in the record.” In the absence of this there was no final judgment.

The assessment of the damages by the cleric could have no greater effect than the verdict of a jury, which, however formal, is but the basis upon which a judgment may be rendered by the court.

The entry in this cause claimed to be a final judgment contains no declaration that the plaintiff, in the opinion of the court, was entitled to recover from the defendant any sum of money; the mere fact that the clerk may have assessed the damage at a certain sum is not sufficient.

In the cases of Barnett v. Caruth, 22 Tex., 174, and Dyer v. Sullivan, 18 Tex., 770, the entries were very similar to that relied upon in this case, and they were held insufficient. As said in Spiva v. Williams, 20 Tex., 443, “ The very object of a suit is to adjudicate and declare the respective rights of the parties in a shape so that the ministerial officers can with certainty carry into execution the judgment of the court, without the ascertainment of additional facts. It is obvious that such is not the case here.” See, also, Stafford v. King, 30 Tex., 277.

A judgment for costs which does not dispose of the subject matter of the suit has been often held by this court not to be a final judgment. Warren v. Shuman, 5 Tex., 441; Neyland v. White, 25 Tex., 319; Martin v. Wade, 22 Tex., 224; Fitzgerald v. Fitzgerald, 21 Tex., 415.

The court below properly held that the certified copy of the entry made in the district court for Washington county on the 11th January, 1878, was not such a judgment as would give lien by its registration, and the judgment is affirmed.

Affirmed.

[Opinion delivered January 15, 1884.]  