Carter v. G & L Tool Co. of Utah, Inc., 14669

• Decision Date: 22 May 1968
• Docket Number: No. 14669,14669
• Citation: 428 S.W.2d 677
• Court: Texas Court of Appeals
• Parties: W. W. CARTER, Sr. et al., Appellants, v. G & L TOOL COMPANY OF UTAH, INC., Appellee. . San Antonio

Page 677

428 S.W.2d 677

W. W. CARTER, Sr. et al., Appellants, v. G & L TOOL COMPANY OF UTAH, INC., Appellee.

No. 14669.

Court of Civil Appeals of Texas San Antonio.

May 22, 1968.

George F. Manning, San Antonio, for appellants.

Hooper & Perry, Abilene, Sawtelle, Goode, Troilo Davidson & Leighton, San Antonio, for appellee.

KLINGEMAN, Justice.

This is an appeal from a judgment rendered against appellants, W. W. Carter, Sr., and W. W. Carter, Jr., d/b/a Carter & Carter, in the District Court of Bexar County, Texas, in a suit upon a Colorado judgment rendered for appellee, G & L Tool Company of Utah, Inc., in the sum of $28,669.86.

Appellants present two points of error: 'FIRST POINT. This case should be reversed and rendered because the court held that the Colorado judgment is a final and valid judgment and is entitled to full faith and credit in the State of Texas. SECOND POINT. This case should be reversed and rendered because the court held that all requirements of due process to appellants were satisfied in the Colorado litigation which resulted in the judgment here under attack .'

The trial court made findings of fact and conclusions of law, which may be summarized as follows:

FINDINGS OF FACT. That appellants employed H. M. Schermerhorn, a Colorado attorney, to represent them as their attorney in Civil Action 5282 in the District Court for Garfield County, Colorado, which Court was one of general jurisdiction in Colorado; that such attorney appeared on behalf of appellants in said Colorado suit by filing an answer to the complaint of Lane-Wells and by requesting a continuance for time to file an answer to the cross-claim of appellee's predecessor, Cortez Fishing Tools, Inc.; that appellants and their attorney of record were given notice that a default judgment would be entered against appellants in the Colorado suit prior to the actual rendition of the Colorado judgment; that said Colorado judgment dated December 12, 1963, had not been appealed, reversed or vacated and is a final judgment remaining in full force and effect; that such Colorado judgment has not been satisfied in whole or in part; that the rights of Cortez Fishing Tools, Inc., to enforce the judgment in the Colorado suit were assigned to appellee.

CONCLUSIONS OF LAW. (1) The judgment against appellants in the Colorado suit is a final and valid judgment and is entitled to full faith and credit in the State of Texas. (2) Appellants entered a general appearance in the Colorado suit and the Colorado Court had jurisdiction over the subject matter of the litigation and jurisdiction over the person of the appellants. (3) All requirements of due process to appellants were satisfied in the Colorado suit.

No statement of facts has been filed in connection with this appeal and, in the absence of a statement of facts, the trial court's findings of fact are binding on the appellate court, and it must be presumed that the evidence was sufficient, and every fact necessary to support the findings and judgment was proved at the trial. Mulcahy v. Cohen, 337 S.W.2d 100 (Tex.Civ.App.--Houston 1964, writ ref'd n.r.e.); Phillips v. American General Insurance Co., 376 S.W.2d 808 (Tex.Civ.App.--Amarillo 1964, no writ); Nuse v. Kormeier, 351 S.W.2d 382 (Tex.Civ.App.--Austin 1961, no writ); Chapman v. Harris, 231 S.W.2d 549 (Tex.Civ.App.--Texarkana 1950, no writ).

It is fundamental that a State must, under Art. 4, § 1, of the Constitution of the United States, give the final judgment of a sister state the same force and effect as it is entitled to in the state in which it is rendered. Barber v. Barber, 323 U.S. 77, 65 S.Ct. 137, 89 L.Ed. 82; Commonwealth of Massashusetts v. Davis, 140 Tex. 398, 168 S.W.2d 216 (1942).

Appellee expressly plead the judgment dated December 14, 1963, entered in the District Court of Garfield County, Colorado in Civil Action No. 5282, and an authenticated copy of such judgment, together with other court proceedings in said cause, is contained in an exhibit to appellee's motion for summary judgment filed in the Bexar County suit. The parties by stipulations agreed: (a) That the court proceedings contained in such exhibit had been certified by both the Clerk and Judge of the District Court for the County of Garfield, State of Colorado, and could be admitted into evidence without any objections to the authenticity or admissibility thereof, any objections being waived. (b) That such Colorado judgment against appellants was a final judgment remaining in full force and effect. (c) That the District Court in and for the County of Garfield and State of Colorado, at all times relevant to the controversy herein, was a court of general jurisdiction in the State of Colorado. (d) That such Colorado judgment had been assigned by Cortez Fishing Tools, Inc., to appellee herein, and that appellee is entitled to recover against appellants any sum which Cortez Fishing Tools, Inc., would be entitled to recover.

Said judgment, which is dated December 12, 1963, recites due and regular notice to appellants; that the Court received the evidence submitted to the Court for consideration and decision, and found that Cortez Fishing Tools, Inc., is entitled to have judgment against appellants in the sum of $28,669,86, and that by reason of the law and the evidence, 'it is ORDERED, ADJUDGED AND DECREED by the Court that * * * Cortez Fishing Tools, Inc. have judgment against * * * W. W. Carter, Sr. and W. W. Carter, Jr., dba Carter and Carter, for the sum of $28,669.86.'

Appellants' contentions under their first point of error are based on two premises: (a) that appellants were never served personally with the answer and cross-claim of appellee in the Colorado suit, and the Colorado court was without jurisdiction; (b) that the judgment rendered by the District Court of Colorado against appellants in the sum of $28,669.86 was in excess of the amount demanded by appellee in its cross-complaint, and was in violation of and contrary to the Colorado Rules of Civil Procedure.

In the stipulations agreed to by the parties and filed in the trial court of Bexar County, Texas, it was stipulated that appellants were personally served with a copy of the original complaint of Lane-Wells Company in Civil Action 5282 in the District Court of Garfield County, Colorado, together with a summons to answer it within 20 days; and also that appellants conducted oil and gas exploration in Garfield County, Colorado, prior to the filing of the original complaint. The transcript before us contains, among others things, the following: (a) The original complaint in Cause No . 5282, in which Lane-Wells Company was plaintiff, and appellants, together with other parties including Cortez Fishing Tools, Inc., were defendants. (b) A motion to dismiss filed in said cause under date of March 31, 1961, by H. M. Schermerhorn as attorney for appellants on the ground that said complaint fails to state a claim against appellants upon which relief can be granted. (c) An order of dismissal dated August 13, 1962, wherein it is recited that W. W. Carter, Sr., and W. W. Carter, Jr., d/b/a Carter & Carter, appeared by their attorney, H. M. Schermerhorn, and that said Complaint is dismissed as to all parties defendant, but that such dismissal 'is entered with the understanding and on condition that the same is not to affect or prejudice the rights of Cortez Fishing Tools, Inc. to prosecute final judgment on the Cross-Claim filed by it, nor shall the same affect or prejudice the right of other defendants to either move against or defend against said Cross-Claim.' It is further ordered that appellants 'are to file their answer to said Cross-Claim within twenty (20) days from this date.'

In its findings of fact, the trial court of Bexar County found that H. M. Schermerhorn appeared on behalf of appellants in said Colorado suit by filing an answer to the Lane-Wells complaint and by requesting a continuance for time to file an answer to the cross-claim of Cortez Fishing Tools, Inc. In the absence of the filing of a statement of facts herein, this Court must presume that the evidence was sufficient to support the trial court's finding in this regard.

Where a cross-claim seeks affirmative relief against a co-defendant who has not appeared in the action, notice thereof must be given by service of process. Process is not required, however, if the defendant has filed his answer to plaintiff's petition or has otherwise appeared in the action, since such appearance brings him before the court for all purposes and charges him with notice of the cross-claim, whether it be filed before or after his appearance in an answer to plaintiff's demand. Sullivan v. Doyle, 108 Tex. 368, 194 S.W. 136 (1917); 2 McDonald, Texas Civil Practice § 7.56, p. 721 .

A non-resident defendant by appearing and filing an answer to plaintiff's petition gives the court jurisdiction over his person. Clark v. O'Donell, 68 Colo. 279, 187 P. 534. The filing of an answer in Colorado constitutes a general appearance. Farmers Life Ins. Co. v. Connor, 82 Colo. 81, 257 P. 260; Union Pac. Ry. Co. v. De Busk, 12 Colo. 294, 20 P. 752, 3 L.R.A. 350 (Colo.Sup.Ct.); Sanders v. Black, 136 Colo. 417, 318 P.2d 1100.

A defendant who, although not personally served with process, appears in the first instance in a cause and asks for an extension of time to plead, or for a continuance, is ordinarily considered to have appeared generally, and thereby waived any objections to the jurisdiction of the court over his person. 81 A.L.R. p. 166; 5 Am.Jur.2d, Appearance, §§ 24 and 25.

This Court, in Liddell v. Blevins, 244 S.W.2d 335 (1951, writ ref'd n.r.e.), in discussing the presumption in favor of a judgment of a sister state, quoted from Texas Jurisprudence and Mitchell v. San Antonio Public Service Co., as follows:

"If an authenticated judgment appears on its face to be a record of a court of general jurisdiction, jurisdiction over the cause and the...