Dyer v. Johnson

• Decision Date: 11 May 1929
• Docket Number: (No. 12122.)
• Citation: 19 S.W.2d 421
• Parties: DYER v. JOHNSON.
• Court: Texas Court of Appeals

Page 421

19 S.W.2d 421

DYER v. JOHNSON.

(No. 12122.)

Court of Civil Appeals of Texas. Fort Worth.

May 11, 1929.

Rehearing Denied June 8, 1929.

Appeal from District Court, Young County; E. G. Thornton, Judge.

Suit by Fred W. Johnson against W. H. Dyer and another. Judgment dismissing suit against defendant F. M. Carpenter, and, from the judgment for plaintiff, defendant W. H. Dyer appeals. Reversed and remanded.

Fred T. Arnold, of Graham, and Cantey, Hanger & McMahon, Warren Scarborough, and Alfred McKnight, all of Fort Worth, for appellant.

McFarlane & McFarlane, of Graham, for appellee.

BUCK, J.

At the April term, 1918, of the circuit court of the state of Illinois, and for the county of Mercer, Fred W. Johnson, through his attorney, John M. Wilson, filed suit against W. H. Dyer and F. M. Carpenter on two notes, one for $1,260, due nine months after November 5, 1915, with interest at 6 per cent. per annum, and one note for $500, payable December 1, 1915, with 6 per cent. interest from date, payable semiannually, both notes being executed by said Dyer and Carpenter. The notes were made payable to Charles Benson, and it was alleged in the petition that Charles Benson had indorsed said notes to the plaintiff, and that thereby the defendants became liable to plaintiff for the amount of said notes, interest, attorneys' fees, etc.

Henry E. Burgess, an attorney, waived service of process and notice for the defendants, and confessed judgment in favor of plaintiff for the sum of $2,100.10 and costs of suit, and further agreed that no writ of error or appeal should be prosecuted on the judgment entered by virtue hereof, or any bill of equity filed to interfere, in any manner, with the judgment, and released for the defendants all errors that might interfere in delivering up the same or in delivering the execution therein, and consented to immediate execution on such judgment.

Under the laws of Illinois, judgment may be had for plaintiff on promissory notes by a confession of any attorney that the amount shown in the notes, together with interest and costs, constitutes a legal and just claim. Such attorney, appointed by the court, we presume, has authority to accept service and confess judgment. This law is what is known as the "narr and cognovit" law. "Narr" is an abbreviation of the Latin word "narratio," which means the complaint or petition; and the word "cognovit" is also a Latin word, meaning, as used in the statute, that the defendant has confessed judgment, and confessed the justice of the claim.

John Wilson, as attorney for plaintiff, made an affidavit in the case that he was acquainted with W. H. Dyer, and that Dyer acknowledged to him that his signature to the notes, and the power of attorney annexed thereto, was the genuine signature of the said W. H. Dyer. The plaintiff made an affidavit that all offsets and counterclaims had been allowed, and that the defendants Dyer and Carpenter were living, and that no part of said debt was for usurious interest, and that neither of said defendants was in the United States Army or Navy, or in any part of the United States' service; that there was then due the plaintiff from the defendants $2,100.10, including principal, interest, and attorneys' fees.

Judgment was rendered awarding plaintiff the amount sued for. On June 18, Schriver & Schriver, of Rock Island, Ill., and Robert L. Watson, of Aledo, Ill., entered their appearance for the defendants. On the same day Schriver & Schriver, as attorneys for W. H. Dyer and F. M. Carpenter, filed their motion to vacate the judgment. In the motion it was alleged there was no consideration for the notes sued on; that the notes sued on were made and executed in connection with a certain contract, which was mutually canceled and held for naught, and said notes were by said agreement paid, and were to be returned by the payee to the maker; that plaintiff had notice and was aware of the cancellation of the contract and notes aforesaid, and was a party to said agreement, and is bound by the same; that plaintiff, Fred W. Johnson, was a party in interest and a part owner of the notes which were sued on herein at the time of the execution of the same, and was also a party to the cancellation of said notes, and he cannot recover on said notes for the reason that the same have been canceled and paid by him. Other allegations were contained not necessary here to mention.

In connection with the motion to vacate, W. H. Dyer filed his affidavit, in which he set up that certain notes aggregating more than $17,600 had been executed by W. H. Dyer and F. M. Carpenter in payment for certain lots owned by Charles Benson and Anton Benson, of the firm of Benson Bros., engaged in the real estate business in Chicago, and that said Dyer and Carpenter made and executed two notes, one for $1,260 and one for $500; that said two notes were given in part payment on said lots and real estate, and that subsequent thereto the said Charles Benson agreed with affiant and said Carpenter that the contract and notes heretofore mentioned should be void and have no force and effect; and that the plaintiff in the suit was a party to said agreement. The affiant further stated in said affidavit that the $500 note had been reduced, before they agreed to cancel the deal and the notes, to $150.15. Affiant further stated that on June 11, 1918, he was informed by Anton Benson that Johnson had admitted that Charles Benson had given him his personal note for $3,903.12 for the purpose of taking up the two notes upon which suit was filed. Affiant further stated that he was informed by the said Anton Benson, and believed the same to be true, that said Johnson had knowledge of the facts that said notes and contract between affiant and Carpenter on the one hand and said Benson Bros. on the other hand had been canceled and held void at or before the time he acquired same. F. M. Carpenter made an affidavit generally to the same effect.

The trial court granted the motion to vacate, and ordered both the plaintiff and the defendants to plead.

In support of defendants' motion to vacate, Anton Benson filed his affidavit, in which he stated that the contract between Dyer and Carpenter on the one hand and the Benson Bros. on the other hand had been canceled and held for naught, and the notes given in payment of the land purchased had also by mutual agreement been canceled; that plaintiff, F. W. Johnson, was acquainted with the whole transaction, and was an agent and party thereto; that said Johnson took said notes, the note for $1,260, and the note for $500, knowing they were given as a part of said contract of purchase; and that said contract of purchase had been mutually annulled by the parties thereto.

Subsequently, and after the defendant Dyer had left Illinois and gone to Kansas, and from there to Texas, plaintiff, by H. L. Hebel and H. E. Burgess, the latter who had purported to represent the defendants in the action, filed a petition for declaration of trespass on the case, and the court rendered judgment against the defendants for $2,100.10, being the amount due on the notes "over and above the costs in this behalf sustained or expended."

Nothing further seems to have been done with reference to this later judgment until the March term, A. D. 1928, of the district court of Young county, Tex., when plaintiff filed his original petition against Dyer and Carpenter in which he set up that he had recovered judgment on December 8, 1919, and had recovered against defendants $2,307.90, attorneys' fees $191.91, with interest, and prayed the court to have the defendants cited to appear and answer the petition. The defendant Dyer filed an answer, in which he set up substantially the facts which he had pleaded in his motion to vacate the judgment in Illinois, and further pleaded the agreement to dismiss the suit. The cause was tried on June 30, 1927, and judgment entered dismissing the case as to F. M. Carpenter, without prejudice, and judgment entered against the defendant W. H. Dyer for the full amount of the judgment theretofore rendered against him and Carpenter on December 8, 1919, in the state of Illinois.

The court found that the judgment entered in Illinois was a valid and subsisting judgment, and that plaintiff should recover against Dyer the sum of $3,576.73, with costs. The defendant has appealed.

Opinion.

We think that the Texas authorities hold that a judgment entered by a sister state, and sued on in this state, may be set aside for fraud in the obtaining of the judgment. In Babcock v. Marshall, by the Court of Civil Appeals of Austin, opinion by Chief Justice Fisher, 21 Tex. Civ. App. 145, 50 S. W. 728, it is held that, under the Constitution of the United States, art. 4, § 1, requiring full faith and credit to be given to the judgment of a sister state, a foreign judgment of law procured by fraudulent conduct that deprives defendant of a meritorious defense which he was not guilty of negligence in urging may be enjoined where it is sought to be enforced in another state; that under said article and section of the United States Constitution the judgment of a sister state is entitled to no more credit than a domestic judgment. In the cited case a judgment rendered by the circuit court of Cook county, Ill., in favor of plaintiff and against defendant, was involved. Like in this suit, defendant pleaded and showed that the plaintiff and defendant in the original suit had agreed upon a full settlement of the notes under litigation pending in Illinois, and that the defendant had fully paid off and discharged the claim upon which suit was based, and the plaintiff thereunder in and there agreed to dismiss said suit and not to prosecute the judgment. The court said:

"There is evidence in the record which supports the averments of the answer as set out. The effect of the evidence in support of these averments, in our opinion, shows that the judgment was procured by...