Bernard Gloeckler Co. v. Baker Co., 2700.

• Decision Date: 14 July 1932
• Docket Number: No. 2700.,2700.
• Citation: 52 S.W.2d 912
• Parties: BERNARD GLOECKLER CO. v. BAKER CO.
• Court: Texas Court of Appeals

52 S.W.2d 912

BERNARD GLOECKLER CO. v. BAKER CO.

No. 2700.

Court of Civil Appeals of Texas. El Paso.

July 14, 1932.

Rehearing Denied September 12, 1932.

Appeal from District Court, Dallas County; Royall R. Watkins, Judge.

Suit by the Bernard Gloeckler Company against the Baker Company. Judgment for defendant, and plaintiff appeals.

Affirmed.

Stonecipher & Ralston, of Pittsburgh, Pa., and McNees & Roberts, of Dallas, for appellant.

Callaway & Reed, of Dallas, for appellee.

WALTHALL, J.

This suit, filed in the district court of Dallas county, Tex., by appellant, a corporation, and against appellee, a corporation, is based upon a judgment obtained in the court of common pleas, county of Allegheny, state of Pennsylvania, and the only question presented is whether or not the Dallas county district court should give full faith and credit to the Pennsylvania court judgment.

The Pennsylvania court judgment is based upon two promissory notes executed and delivered by the Baker Company, by F. J. Baker, its vice president and general manager. The two notes are of the same date, are for the same amount, and of the same verbiage, except that one note is due and payable in seventeen months after date, and the other note is due and payable eighteen months after date. The notes read as follows:

                "$1111.12.    Dallas, Tex., Oct. 20, 1925
                

"Eighteen months after date (the other 17 months after date), for value received, we, or either of us, promise to pay to the order of Bernard Gloeckler Company, Eleven Hundred Eleven and 12/100 Dollars

                            Bernard Gloeckler Company
                

and in case of default of payment at maturity an additional five per cent. for the attorney's fees for collection of the same. And we empower any attorney of record in this commonwealth or elsewhere, to appear for us and confess judgment against us for the above sum, together with the five per cent. additional, with the costs of suit release of errors, and without any stay of execution; and for value received do waive the rights and benefits of any law of this or any state exempting property, real or personal, from sale, and if levy be made on land, do also waive the rights of inquisition and consent to the condemnation thereof, with full liberty to sell the same fi. fa. with release of error thereon, with interest at 6%.

                           "The Baker Company [Seal]
                "[Signed] By F. J. Baker [Seal]."
                

The Baker Company answered by general denial and special answers; denied that Baker had authority to sign such note waiving right to be sued in Texas; pleaded that it had no notice or service of citation and that it made no voluntary appearance by attorney or otherwise, that plaintiff had filed suit in the Dallas county district court, but such suit had been dismissed without prejudice to either party, that the Pennsylvania court was without jurisdiction to try such suit, that the matters contained in the notes are contrary to the Texas laws where the notes were executed and the place of their performance, and that the provisions of such notes should be governed by the laws of Texas, and that the purported judgment involved is unlawful, void and of no effect.

The case was tried to the court. The judgment recites that the court heard all the evidence and argument and, being of the opinion that the facts and the law are with the defendant, ordered that plaintiff take nothing by its suit.

The trial court made and filed findings of facts and conclusions of law. The findings and conclusions are lengthy, and we refer briefly to such only as we think necessary to the disposition we make of the case. No notice, citation, or other service was had on defendant in the Pennsylvania court prior to the judgment entry, and everything done in the court was without the knowledge or consent of the defendant other than such as is expressed in the notes. The court in the findings recites at length the laws of Pennsylvania and the jurisdiction of the court. Entering the judgment sued on on the application of the holder of the notes, and the authority of the court to appoint an attorney at law to confess judgment, and to enter judgment such as was entered, and the proceeding had in this particular case in entering judgment, and the judgment entered.

From all of the facts found the trial court concluded that: "F. J. Baker had authority to sign these notes involved in this case, containing provisions permitting the confession of judgment. * * * That the purported judgment possesses the formal requisite of a valid judgment and, if void, is so because the court of Common Pleas of Allegheny County, Pennsylvania, did not possess jurisdiction in this case to render such a judgment as is entitled to full faith and credit under the Constitution of the United States of America, and under the laws of the State of Texas." The court further concluded that: "The notes here sued on were made in Texas; that under the facts in this case, as a matter of law, they were payable in Dallas, Dallas County, Texas, and that it was the intention of the parties that the Texas law should govern this contract." The court then refers to article 2224 of the Texas Civil Statutes and concludes that such agreement for confession of judgment as contained in the notes is void under the laws of this state, and therefore the agreement in the notes to confess judgment was void from the beginning; that the judgment rendered was without due process, and cannot be enforced in this state.

Without quoting at length from the evidence or from the trial court's findings of fact, we think it sufficient to say that the Pennsylvania court had jurisdiction of the amount in controversy, as disclosed by the notes sued on, and had jurisdiction of...