The opinion
On Rehearing.
May 25, 1945, this court handed down the-original opinion in the above cause affirming the judgment of the trial court. Appellant Blanks and appellees B. M. and. O. E. Radford have each filed motions for-rehearing. We have carefully considered' the appellant’s motion and are of the opinion the same should be overruled for the reasons stated in the former opinion and for the reasons following:
Appellees’ motion for rehearing is to the effect that they are entitled to have the-judgment affirmed on another and different ground from that approved in the original opinion. They now insist that regardless, of whether there was or was not an affidavit filed in accordance with the provisions of Article 3775, Revised Statutes of 1925,. that the trial court’s judgment is, nevertheless, correct in that the alias execution, of May 24, 1937, and pluries execution of September 30, 1937, were sufficient to keep-the judgment (1625 — B) against Blanks, from becoming dormant or barred.
The controlling facts of this case have-been substantially set forth in the original opinion, but those most pertinent to the-issue now under consideration will be briefly summarized.
J. M. Radford obtained a judgment (1625 — B) against Blanks November 15,. 1932, and had an order of sale and execution issued thereon January 5, 1933, and due return was made February 10, 1933.. *887 Said Radford died July 4, 1933, leaving a will disposing of his interest in the community estate of himself and wife. He gave one half of his interest in said estate to his wife, B. M. Radford, and the other half to O. E. Radford, his son. They are appellees herein.
The will was probated August 1, 1933, and in due time the independent executors provided for in the will qualified and thereafter completed their work as such. Their .services ended December 18, 1935, at which time the beneficiaries under the will and the executors thereof filed in the Probate and Deed Records of Taylor County an instrument reciting disposition of certain properties in accordance with the will and setting forth that there was no necessity for further administration of the estate, since all debts, specific bequests, inheritance taxes, etc., had been paid off and provided for. From said December 18th and thereafter the beneficiaries, appellees herein, took control of the properties of the estate which the testator had willed and bequeathed to them. Such assets included the Blanks judgment.
Thus stood the record pertaining to that judgment until issuance of the alias and pluries executions of date, respectively, May 24 and September 30, 1937. After the issuance and due return of the alias and pluries executions, the record as to the judgment again remained unchanged and nothing was done in regard to it until the present garnishment proceeding of September 20, 1944, which, from the standpoint of appellees, was based on said judgment (1625 — B) as then valid and subsisting and owned by B. M. and O. E. Rad-ford, “who,” the court finds, “were entitled to have such executions issue.” The alias and pluries executions were issued at the instance and request of said beneficiaries, or their attorney for them. As reflected above, they had (by the will) become the equal owners of the J. M. Radford community interest in the judgment, along with other properties devised and bequeathed to them. (The other one-half of said community estate belonged at all times to the wife, B. M. Radford.) As pointed out, when the alias and pluries executions were issued, no administration of the estate of J. M. Radford was then pending and none was further necessary, since such administration of that estate had previously been terminated for such reasons on December 18, 1935, which, of course, was long prior to the date of the alias and pluries executions.
Based upon the foregoing facts, the trial court made the following conclusion of iaw: “From the foregoing facts, the court concluded, as a matter of law, that B. M. and o. E. Radford are the owners of the judgment rendered in cause No. 1625 — B and have the right to bring this action, That the. judgment rendered in cause No. 1625 — B is alive, valid and subsisting. That said judgment was kept alive by the issu-anee of executions (alias and pleures) at the instance and in favor of the owners of the judgment, who were entitled to have such execution issue.”
The instant garnishment proceeding was instituted September 20, 1944, and obviously the judgment against Blanks is barred if it has nothing to support it except the original order of sale and execution of date January 5, 1933. If that judgment be not barred, or be valid and subsisting, as of the date, September 20, 1944, it is so because of the issuance of said alias and pluries executions and their legal sufficiency to prevent the bar or dormancy of the same-
Under the above facts the will of J. M. Radford and the probate thereof was a sufficient and complete mode of transferring and assigning to said beneficiaries all right, title and ownership of the uncollected Blanks judgment along with the other property covered by the will, Especially is this true since the administration provided for in the will had been consummated by the agreement of December 18, 1935, by virtue of which the independent executors delivered to said beneficiaries, and they acknowledged receipt thereof, of the properties, including 'Blanks judgment, which the testator had devised to them. Article 8282, Vernon’s Ann.Civ. St. Thus the beneficiaries’ right and ownership became complete in matters of disposition and was the same or analogous to that of an assignee of a judgment. The assignment of judgments, legal or equitable, by writing or by parole, is well recognized and upheld by the courts. McMillan v. Rutherford, Tex.Civ.App., 14 S.W.2d 132 ; Garvin v. Hall, 83 Tex. 295 , 18 S.W. 731 ; 26 Tex.Jur. p. 449, § 593.
In the McMillan case the court said [ 14 S.W.2d 133 ] : “ ‘With respect to its assignable qualities, a judgment is governed by the rules applicable to other choses in action; and may be assigned by any person *888 and by any method competent and sufficient for the assignment of any other chose in action.’ 2 Freeman on Judgments, p. 2187, § 1049.”
The alias execution of May 24, 1937, carried the recital that the judgment formerly owned by J. M. Radford “is now owned by O. E. and B. M. Radford.” The undisputed facts are to that effect. Their authority over the same is reflected by the rule of law stated in 18 T. J. p. 559, § 25, as follows: “The owner of the judgment— i.e., the plaintiff or his transferee — has exclusive control over its collection and is the only person entitled to call for the writ of execution.” Citing Arthur v. Driver, 60 Tex.Civ.App. 100 , 127 S.W. 891 .
The text further states: “And where the writ is issued at the instance of a transferee of the judgment creditor, it should run in the name of the judgment creditor and not in that of the transferee, following the directions of the judgment.” 18 Tex. Jur. p. 593, § 54.
Under the above facts B. M. and O. E. Radford, as the owners of the unsatisfied judgment against Blanks, held exclusive right of control and disposition of the same at the time they requested and procured the issuance of the alias and pluries executions. For such reasons the trial court evidently concluded that, “as a matter of law under the facts,” the judgment was “alive, valid and subsisting” at the time this garnishment proceeding was instituted. The conclusion is believed to be sound and warranted by the evidence, which clearly demonstrates that the judgment against Blanks had not become dormant or barred.
The conclusions of the trial court that said executions were sufficient to prevent the dormancy of said judgment is sustained in principle by the following authorities: Grissom v. F. W. Heitmann, Tex.Civ.App., 130 S.W.2d 1054 ; Kingman Texas Implement Co. v. Borders, Tex.Civ.App., 156 S.W. 614 ; Norwood v. Orient Ins. Co., Tex.Civ.App., 44 S.W. 188 ; Cabell v. Orient Ins. Co., 22 Tex.Civ.App. 635 , 55 S.W. 610 ; 26 Tex.Jur. p. 462, § 604; p. 399, § 553.
To the extent indicated, appellees’ motion for rehearing is granted. For the reasons herein assigned, as well as those stated in the court’s original opinion, the judgment of the trial court is affirmed. It is so ordered.