JAMES M. PARKS, Appellant v. TICOR TITLE INSURANCE COMPANY AND INTERFIRST BANK-IRVING, Appellee

Affirmed and Opinion filed September 7, 1989
 
 
S
In The
Court of Appeals
Fifth District of Texas at Dallas
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No. 05-88-01321-CV
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JAMES M. PARKS, Appellant
V.
TICOR TITLE INSURANCE COMPANY AND INTERFIRST BANK-IRVING, Appellee
.................................................................
On Appeal from the 160th District Court
Dallas County, Texas
Trial Court Cause No. 86-13915-H
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O P I N I O N
Before Justices Howell, Baker, and Ovard
Opinion By Justice Howell
        Plaintiff, Ticor Title Insurance Company commenced this garnishment action against Interfirst Bank-Irving to enforce payment of an uncollected judgment against defendant, James M. Parks. Defendant intervened to contest the enforceability of the underlying judgment.
        Defendant's entire grounds for resisting the judgment and the garnishment in support thereof is based upon the allegation that said judgment became dormant because, as contended, no writ of execution for the enforcement thereof was, within ten years from the date of judgment, issued and placed in the hands of an officer for the purpose of execution thereon.
        Judgment was originally rendered on October 21, 1976. In the summer of 1986, plaintiff discovered that defendant had a bank account at the garnishee bank. On October 17, 1986, the fourth day before the judgment's tenth anniversary, plaintiff applied for and obtained a writ of garnishment against garnishee bank to enforce its judgment. At the same time, plaintiff requested the issuance and delivery of a writ of execution. A deputy in the district clerk's office prepared the writ of execution and dated it as having been issued on that date, October 17. She then routed the execution to the sheriff by placing the writ in a pickup box for transfer to the sheriff's office. The return reflects that the constable received the writ from the sheriff sometime in November or December FN:1 and returned it to the trial court December 5, 1986. The constable returned the writ to the trial court at the request of Ticor's attorney who assumed that the constable had been unsuccessful in locating any assets of Parks. The trial court entered judgment upholding the validity of the original judgment and granted the garnishment in partial satisfaction thereof.                           In his first point of error, Parks contends that there was no evidence that the writ of execution was actually delivered by the district clerk to an officer for enforcement. In reviewing a no evidence point, the appellate court must consider only the evidence and reasonable inferences tending to support the trial court's finding and must disregard all evidence and inferences to the contrary. Stafford v. Stafford, 726 S.W.2d 14, 16 (Tex. 1987). The record reflects that the deputy clerk placed the writ of execution in the pickup box for transfer to the sheriff's office. In October 1986, county personnel assigned to handle jury transport and delivery were responsible to Transport and Delivery pick up and deliver documents travelling between the district clerk's office and the sheriff's office or the constables' offices. There were two men engaged in these duties. One or the other would pick up the documents from the district clerk's pickup boxes twice a day. If a document was placed in the pickup box by noon, it would be picked up and delivered that same day; if not, it would be delivered not later than the following day. The foregoing was the standard operating procedure of the district clerk's office with regard to the preparation of writs, processes, and delivery to the sheriff or the constables. There was testimony that the officials involved justifiably relied on the pickup box system. Appellant insists that the foregoing evidence had no relevance as to whether the writ was actually delivered by the district clerk to an officer for enforcement.
        Defendant's assertion that there was no evidence that the writ was delivered fails to recognize the existence of circumstantial evidence. Evidence is direct if it is probative of a fact, without inference. Evidence is circumstantial if it is probative of a fact which raises an inference of the existence of another fact that the offeror seeks to establish. Dutton v. Southern Pac. Transp., 561 S.W.2d 892, 895 (Tex. Civ. App.--El Paso), rev'd on other grounds, 576 S.W.2d 782 (Tex. 1978). A fact may be established by circumstantial evidence when it may be fairly and reasonably inferred from other facts proved. H. E. Butt Grocery Co. v. Pena, 592 S.W.2d 956, 959 (Tex. Civ. App.--Austin 1980, no writ). We hold that the previously mentioned evidence, although not direct evidence, is sufficient circumstantial evidence to warrant the trial court's finding that the execution was placed in the hands of an officer with power to execute upon it before the expiration of ten years. We overrule defendant's first point of error.
        In his second point of error, defendant contends that there was no evidence to support the finding of the trial court that the writ of execution was delivered to the Dallas County Sheriff's Department on October 17, 1986. We conclude that after reviewing the foregoing evidence, the trial court reasonably and fairly inferred that the writ of execution was delivered to the sheriff's office on October 17, 1986 or one of the three ensuing days. See Pena, 592 S.W.2d at 959. We overrule defendant's second point of error.
        In point of error three, defendant asserts that the trial court erred in concluding as a matter of law that Ticor's writ of execution was issued within the prescribed ten year period of limitations. Since we have concluded that the trial court's finding that the writ of execution was delivered to the Dallas County Sheriff's Department on October 17, 1986 or the three days thereafter, was sufficient, we hold that the trial court correctly stated in its conclusions of law that Ticor's writ of execution was issued within the ten year period as stipulated in TEX. CIV. PRACT. & REM. CODE ANN. § 34.001 (Vernon 1986). We overrule defendant's third point of error.
        In points of error four and seven, defendant asserts that the trial court erred in making the conclusion of law that Ticor's writ of execution was issued within the ten year period of limitations because there was no evidence that there was reasonable diligence in making delivery to an officer. In order for there to be issuance of a writ within the appropriate statutory period, there must be either actual delivery to the appropriate officer within the period or, if actual delivery is made after expiration of the period, then reasonable diligence in making delivery from the date shown on the writ until actual delivery to the officer. Ross v. American Radiator & Standard Sanitary Corp., 507 S.W.2d 806, 809 (Tex. Civ. App.--Dallas 1974, writ ref'd n.r.e.). Since we have already held that there was circumstantial evidence that the writ was actually delivered to the sheriff's office, we conclude that Ticor need not prove reasonable diligence. We overrule defendant's fourth and seventh points of error.
        Lastly, defendant contends that the trial court erred in making the conclusion of law that the judgment was still in full force, because the judgment was dormant. Section 34.001(a) of Texas Civil Practices and Remedies Code provides: "If a writ of execution is not issued within 10 years after the rendition of a judgment of a court of record or a justice court, the judgment is dormant and execution may not be issued on the judgment unless it is revived." TEX. CIV. PRAC. & REM. CODE ANN. § 34.001(a) (Vernon 1986). Because we have already held that there is at least some evidence to the effect that plaintiff's writ of execution was issued and delivered to an officer within the ten year period of limitations, we conclude that the judgment in cause number 76-7889-8 was not dormant. We overrule defendant's fifth, sixth, and eighth points of error. The judgment of the trial court is affirmed.
                                                          
                                                          CHARLES BEN HOWELL
                                                          JUSTICE
 
 
Do Not Publish
Tex. R. App. P. 90
881321F.U05
 
FN:1 The exact date on which the Constable received the return is unclear because of an erroneous reference to November 31, 1986, a date which did not exist.
File Date[09-07-89]
File Name[881321F]