Adam v. Saenger, 2988.

• Decision Date: 09 February 1937
• Docket Number: No. 2988.,2988.
• Citation: 101 S.W.2d 1046
• Parties: ADAM v. SAENGER et al.
• Court: Texas Court of Appeals

101 S.W.2d 1046

ADAM v. SAENGER et al.

No. 2988.

Court of Civil Appeals of Texas. Beaumont.

February 9, 1937.

Rehearing Denied February 17, 1937.

Appeal from District Court, Jefferson County; R. L. Murray, Judge.

Action by Estaban Adam against William Saenger and others. Judgment sustaining general demurrers to petition, and plaintiff appeals.

Affirmed.

Howth, Adams & Hart, of Beaumont, for appellant.

Geo. E. Holland and C. A. Lord, both of Beaumont, for appellees.

O'QUINN, Justice.

This is a suit by Estaban Adam against William Saenger et al., as officers, directors, and statutory trustees of the Beaumont Export & Import Company, a dfunct Texas organization, to recover on a judgment obtained in one of the superior courts of the state of California, county of Los Angeles, by Rodolfo Montes, against the Beaumont Export & Import Company, a Texas corporation, on his cross-complaint, in the sum of $5,000 and costs of court; Adam being the owner of said judgment by purchase for a valuable consideration.

The facts leading up to said judgment in favor of Montes on his cross-action against said Beaumont Export & Import Company are: On May 31, 1929, the Beaumont Export & Import Company, a Texas corporation, as plaintiff, filed suit against Rodolfo Montes, defendant, in the superior court of Los Angeles county, Cal., said suit being numbered 279850, for the sum of $6,043.37, same being the purchase price of certain fixtures, goods, wares, and merchandise alleged to have been purchased by said Rodolfo Montes from said Beaumont Export & Import Company, and by it shipped and delivered to Montes at his place of business in the city of Mexico in Mexico. Said company filed an amended petition in said cause on July 18, 1929.

Montes, the defendant, filed his answer in said suit on August 22, 1929, and on October 19, 1929, filed an amended answer setting up a plea in abatement.

On September 15, 1930, the Beaumont Export & Import Company, by the voluntary action of its stockholders in accordance with the laws of Texas, dissolved said corporation and filed with the secretary of state a certificate of such action, and he gave a certificate of its dissolution. Notice or information of its dissolution was not given to the California court where the suit was pending, nor was any action taken looking to the dismissal of said suit, or to in any manner dispose of same, but same was left pending on the docket.

Some two years later, on November 7, 1932, by permission of the court, Montes filed in said cause a cross-complaint against the Beaumont Export & Import Company to recover of it for the value of certain goods and chattels (enumerating them) alleged to have been unlawfully converted by cross-defendant, of the alleged value of $5,000. Service on or notice to said Beaumont Export & Import Company of the filing of this cross-action by Montes against it was by leaving a notice at the office of Richard F. Bailey in Los Angeles, Cal., he being a lawyer and a member of the law firm that represented said Beaumont Export & Import Company in filing its suit against Montes. This notice to Bailey of the filing of the cross-action, was on November 11, 1932. Judgment by default in favor of Montes against the Beaumont Export & Import Company for $5,000 and costs of suit was rendered on May 24, 1933, and entered of record May 31, 1933. Notice of this judgment was given Bailey on September 6, 1933. On November 17, 1933, Bailey, purportedly acting for Beaumont Export & Import Company, filed motion to set aside the judgment against said company, contending that no notice of the filing of the cross-action was ever, in any manner, given him, and at the same time he filed answer to the cross-action. The motion to set aside the judgment upon hearing was overruled, and so the answer was not considered. No appeal or action of any kind was taken from these proceedings. Montes assigned the judgment to Consuelo H. De Montes on June 6, 1933, and she assigned the judgment to Estaban Adam, appellant, on September 20, 1933. On January 31, 1935, the suit by the Beaumont Export & Import Company against Rodolfo Montes, No. 279850, was dismissed for want of prosecution.

The instant suit was brought in the Sixtieth district court of Jefferson county, Tex., on May 27, 1935, against appellants to establish and recover on the above-mentioned judgment. We shall not undertake to state the substance of appellant's petition, but will say that his asserted right was fully and admirably pleaded, and his prayer ample. The defendants, William Saenger, P. P. Butler, H. A. Perlstein, and W. H. Garretson, answered individually and as trustees for the Beaumont Export & Import Company (the dissolved corporation, cross-defendant in the California suit) by pleas in abatement, general demurrer, special exceptions, general denial, and several special matters of defense not believed necessary to state. The other defendants answered adopting the pleadings of William Saenger et al., and by filing general demurrers and general denials. The general demurrers of all the defendants were sustained by the court, and plaintiff, appellant, refusing to amend, the suit was dismissed.

The judgment will have to be affirmed, because, in our opinion, the court rendering the judgment was without jurisdiction to render same for want of jurisdiction over the cross-defendant in the suit, and the judgment was, therefore, void. We think so, because:

(a) The cross-action sought a personal judgment against the cross-defendant. The cross-defendant was a nonresident, and in order for the court to have had jurisdiction over cross-defendant personal service upon it must have been had. The cross-action was not an ancillary proceeding, but an independent suit in which a final judgment could be rendered without awaiting a decision in the original suit. Farrar v. Steenbergh, 173 Cal. 94, 159 P. 707. It is well settled in this state that a cross-action occupies the attitude of an independent suit and requires service of the cross-action upon the cross-defendant. Harris v. Schlinke, 95 Tex. 88, 65 S.W. 172. This being so, in the absence of a waiver of service, or an appearance by the cross-defendant, personal service on the cross-defendant must be had to confer jurisdiction upon the court to determine the matter and render judgment in the case. Appellant does not contend otherwise, but insists that it obtained such service under the California statutes regulating service on parties. He pleads the California statutes (Code Civ.Proc. § 442 and section 1015, as amended by St.1933, p. 1899), as follows:

"1015. Service where defendant resides out of State.

"When a plaintiff or a defendant, who has appeared, resides out of the State, and has no attorney in the action or proceeding, the service may be made on the clerk or on the justice where there is no clerk, for him. But in all cases where a party has an attorney in the action or...