Collin County Nat. Bank v. Hughes

• Decision Date: 01 March 1913
• Citation: 154 S.W. 1181
• Parties: COLLIN COUNTY NAT. BANK v. HUGHES.
• Court: Texas Court of Appeals

154 S.W. 1181

COLLIN COUNTY NAT. BANK v. HUGHES.

Court of Civil Appeals of Texas. Dallas.

March 1, 1913.

Additional Findings of Fact, March 22, 1913.

Appeal from District Court, Collin County; Kenneth Foree, Judge.

Action by the Collin County National Bank against J. A. Hughes. From a judgment for defendant, plaintiff appeals. Affirmed.

John Church and Abernathy & Abernathy, all of McKinney, and D. H. Morrow and Morris, Pope & Puckitt, all of Dallas, for appellant. Henry C. Coke, of Dallas, for appellee.

RAINEY, C. J.

On July 28, 1891, the appellant recovered against appellee a judgment in the United States Circuit Court of the Eighth Judicial District, sitting in and for the district of Colorado at Denver. On December 16, 1907, said judgment was revived by said Circuit Court on scire facias, and on April 14, 1908, this suit was brought in the district court of Collin county by appellant against appellee to recover on said revived judgment. Amended petitions were filed, and defendant answered by second amended answer filed May 4, 1912, setting up general demurrer, general denial, want of jurisdiction in the revival of said judgment, and the statute of limitation of ten years as a defense to appellant's cause of action. A trial resulted in favor of defendant, and plaintiff appeals.

The case was tried without a jury, and the trial court filed conclusions of fact about which there seems to be no controversy, and which are adopted by this court as follows:

"(1) On the 21st day of February, 1891, the Collin County National Bank recovered a judgment in the district court of Collin county, Tex., against the North Texas Mill & Elevator Company and its receiver, as principal, and J. A. Hughes, as surety, for the sum of $8,012.90, with interest at the rate of 12 per cent. per annum from the date of judgment. On this judgment execution was issued on the 9th day of March, 1891, and returned not executed March 16, 1891; the return of the sheriff being that no property was found in Collin county belonging to defendant, J. A. Hughes, subject to execution. This was the only execution issued on the Collin county judgment.

"(2) On the 19th day of May, 1891, the Collin County National Bank filed suit against J. A. Hughes in the Circuit Court of the United States for the state of Colorado, in which it sued for a recovery against J. A. Hughes upon the judgment of the district court of Collin county, Tex. In this suit J. A. Hughes was personally served with citation in the state of Colorado, and judgment by default rendered against him by the said Circuit Court of the United States in the principal amount of $6,050.94; but the judgment did not expressly award any execution. This judgment was of date June 26, 1891. Execution issued on this judgment of date December 14, 1891, and was returned of date April 20, 1892; the return of the marshal on said execution stating that the same had not been executed on account of not having been furnished instructions by plaintiff's attorneys. This was the only execution issued on this judgment.

"(3) On December 16, 1905, suit was filed in the Circuit Court of the United States in the state of Colorado to revive the said judgment obtained in the Colorado court of date June 26, 1891; prayer of plaintiff's petition being that the said judgment should be revived, and that plaintiff should have execution on said judgment when so revived. On this petition a writ of scire facias issued of date December 19, 1905, on which writ return was made by the United States marshal of date December 30, 1905, that J. A. Hughes could not be found in the said district, and that the writ was therefore returned unserved. Upon showing made that J. A. Hughes was without the jurisdiction of the state of Colorado, and personal service could not be made on him, service of the said writ was ordered to be made by publication of the same once a week for four successive weeks in the Denver Examiner, a public newspaper published in the city of Denver, county of Denver, and state of Colorado, which publication was accordingly made. After this publication, attorneys for J. A. Hughes entered a special appearance for the purpose of moving to quash the attempted service of scire facias by publication, and for no other purpose, the said appearance being specially restricted to the purpose of questioning the validity of the service solely, and no other appearance was made in the said cause by said J. A. Hughes.

"(4) Upon hearing the motion to quash the service of the writ, the same was sustained by the court. From this judgment holding the service by publication void, the Collin County National Bank sued out a writ of error to the Circuit Court of Appeals; the petition for writ of error reciting that it was sued out for the correction of errors in a judgment rendered upon a motion of defendant to quash the service of scire facias theretofore in said cause issued; `the said defendant appearing specially for the purposes of said motion and no other.' In the Circuit Court of Appeals a motion was made on behalf of defendant in error to dismiss the writ of error, which motion was sustained by the court, and the writ of error dismissed for want of jurisdiction; this judgment being of date March 26, 1907.

"(5) On the 12th day of October, 1907, plaintiff filed in the Circuit Court of the United States for the state of Colorado, in the same cause, its `petition for an order for service of scire facias and order to show cause,' in which petition the plaintiff set up the facts in regard to its original judgment of date June 26, 1891, which was sought to be revived together with its former unsuccessful efforts to secure service on the defendant, alleged that the defendant, J. A. Hughes, was then, and for a long time past had been, a resident of the state of Texas, that his post office address was Dallas, Tex., and prayed for an order of the court directing that a writ of scire facias or order to show cause be issued in the cause, and that the same be served upon the defendant according to the course of common law, and that service thereof should also be made upon the defendant by delivering to him personally, at his place of residence, a copy of said writ of scire facias. On this petition a writ of scire facias to revive judgment was under order of the court issued of date October 14, 1907. This writ was addressed to the marshal of the district of Colorado. The marshal of the district of Colorado made a return thereon of date October 16, 1907, that he had made diligent search for the defendant, J. A. Hughes, and had been unable to locate him in this district, and therefore made return of said writ of scire facias unserved. Return on the same writ was made by George H. Green, United States marshal for the Northern district of Texas, of date November 13, 1907, to the effect that the same had been executed on that day by delivering to J. A. Hughes at Dallas, Tex., in person, a true copy of said writ. On this service, without appearance by J. A. Hughes, the Circuit Court of the United States for the state of Colorado, of date December 16, 1907, entered a judgment reviving the former judgment of date June 26, 1891; the decree of the court being as follows: `It is thereupon considered, ordered, and adjudged that the said judgment in favor of said Collin County National Bank of McKinney, Tex., be revived, and that said plaintiff do have its execution thereon against the said J. A. Hughes for its debt, damages, and interest according to the form, force, and effect of said judgment, and for its costs in this behalf expended.'

"(6) On the 14th day of April, 1908, the plaintiff, Collin County National Bank of McKinney, filed the present suit against the defendant, J. A. Hughes. J. A. Hughes moved from Colorado to Texas in September, 1896, and then took up his residence at Dallas, in said state, and has resided in Dallas, as a citizen of Texas, continuously ever since said date of September, 1896. The law of the state of...