Ferguson-McKinney Dry Goods Co. v. Garrett

Decision Date06 June 1923
Docket Number(No. 399-3744.)
Citation252 S.W. 738
CourtTexas Supreme Court

Action by the Ferguson-McKinney Dry Goods Company against Joseph E. Garrett. From a judgment for defendant, plaintiff appealed to the Court of Civil Appeals, which affirmed the judgment (235 S. W. 245), and plaintiff brings error. Reversed and remanded for new trial.

H. R. Sutherland and Kleberg, Stayton & North, all of Corpus Christi, and O. W. Patchell, of Pauls Valley, Okl., for plaintiff in error.

G. R. Scott, Boone & Pope, of Corpus Christi, for defendant in error.


During the year 1901, Joseph E. Garrett was a retail merchant in a small town in Indian Territory. He became indebted to the Ferguson-McKinney Dry Goods Company, wholesalers of St. Louis, Mo., a corporation, owing it the principal sum of $1,479.14 on November 18, 1901. Being indebted to other concerns also, Garrett went into bankruptcy. He abandoned his efforts to secure a discharge in the bankrupt court. Plaintiff in error filed suit on its aforesaid claim in the United States District Court at Pauls Valley in Indian Territory and recovered judgment there on December 3, 1903, for $1,660.33, with 6 per cent. interest from that date, and costs of court.

The judgment was revived in the district court of Garvin county, Okl., on September 12, 1913, upon the theory that it had become dormant under the Oklahoma laws on November 16, 1912.

The judgment was not collected, and on November 20, 1913, plaintiff in error instituted its suit in the district court of Nueces county, Tex., against Garrett to recover on aforesaid original judgment and revived judgment. It was alleged that the original judgment was not dormant and that it was effective, as well as the revived judgment.

Although the case at bar was filed late in November, 1913, it was not actually tried until February 7, 1921, when a trial before a jury was had. Counsel for Garrett asked a peremptory instruction which was given. Upon the instructed verdict the district court entered a judgment in favor of Garrett.

Upon appeal to the Court of Civil Appeals at San Antonio, that court affirmed the judgment of the district court. See 235 S. W. 245.

The dry goods company, upon proper application therefor, obtained a writ of error from the Supreme Court.

The nature of the defenses urged by Garrett, and the position of the plaintiff company with reference thereto, will now be considered in their turn.

Counsel for Garrett contend that he was entitled to a peremptory instruction upon any one of three grounds. In the first place, it is asserted that the revivor proceedings were invalid because of failure to obtain legal service upon Garrett; that, since the judgment was not properly revived, the original judgment was still dormant; that being dormant under the laws of the forum in Oklahoma, the original judgment was incapable of being enforced in the courts of Texas.

The Court of Civil Appeals sustained the contentions just above set out. We think it correctly held that the revivor proceedings were not binding upon Garrett. But the Court of Civil Appeals seems to overlook entirely the contention of counsel for the dry goods company to the effect that it was not depending upon the revivor proceedings, but upon the original judgment only; that the revivor proceedings had been taken when they were not necessary and were mere surplusage. The record shows that the attorneys for plaintiff in error expressly abandoned any effort to claim under said revivor proceedings. So, we come to consider whether or not the original judgment was dormant under the law of the forum where rendered when the suit was filed in Texas.

Counsel for the company, without any objection from opposing counsel, introduced in evidence the original judgment entered in the United States court aforesaid; also an Act of Congress of May 2, 1890 (26 Stat. 81), defining the boundaries of the Indian Territory and conferring jurisdiction upon the courts there and specifically enacting that Mansfield's Digest of the Laws of Arkansas, hereinafter referred to, should be in force in that territory until Congress should enact otherwise; then, further, various provisions of these laws of Arkansas, among which was section 4487, providing that —

"Actions on all judgments and decrees shall be commenced within ten years after the cause of action shall accrue, and not afterwards."

Counsel for Garrett introduced nothing in evidence to show that the Arkansas laws aforesaid were not still in force so far as this judgment is concerned. We think, in the absence of all controverting testimony, the company made out a prima facie case that this judgment was not dormant in the forum in Indian Territory where it was rendered and obtained.

Upon appeal, counsel for the company show conclusively that the laws of Arkansas do still govern the judgment in suit, for they cite several decisions of the Supreme Court of the present state of Oklahoma which are exactly in point.

Certainly, no court is better qualified to speak upon this question than the Supreme Court of Oklahoma. Under the rules laid down by that court, the original judgment in controversy was not dormant. In the case of Davis v. Foley, 60 Okl. 87, 159 Pac. 646, L. R. A. 1917A, 187, that court held:

"On September 9, 1901, C. E. Foley obtained judgment against Samuel C. Davis in the United States District Court for the Northern District of the Indian Territory, sitting at Muskogee, Okl. On June 13, 1911, Foley commenced an action against Davis, on said judgment in the district court of Tulsa county, Okl. The defendant demurred to the petition which was overruled, and then pleaded the statute of limitation. The cause was submitted to the court upon the pleadings and judgment given for plaintiff, from which judgment defendant appeals.

"But two questions are raised upon the appeal: First. Could the plaintiff maintain an action on his judgment during the time that he had the right to issue an execution thereon? Second. Was the statute of limitation of Oklahoma, extended in force at statehood over the whole state, comprising in part what was originally Indian Territory, a bar to plaintiff's cause of action, or is the same governed by that portion of Mansfield's Digest of the Laws of Arkansas in force in the Indian Territory at the time the judgment was recovered?"

The court then answered the first question in the affirmative and proceeded as follows:

"The second proposition as to the application of the statute of limitation is clearly determined by Patterson v. Rousney, No. 4233, 159 Pac. 636, recently decided upon rehearing, and not yet reported. In that case it was said:

"`Where a promissory note, executed and payable in the Indian Territory, was subjected to the running of the statute of limitation as contained in section 4483, Mansfield's Digest, Statutes of Arkansas, for a period of time prior to the erection of the state, an action was instituted thereon after the admission of the state into the Union in the courts of this state. Held that the cause of action on said note was governed, as to the length of time necessary to constitute a bar thereto, by section 4483, Mansfield's Digest, and not by the laws of Oklahoma Territory extended over the state by the Constitution.'

"The section of Mansfield's Digest in force in the Indian Territory applicable to the present case is section 4487, which reads as follows:

"`Actions on all judgments and decrees shall be commenced within ten years after the cause of action shall accrue, and not afterwards.'

"It is apparent, therefore, that this being the controlling statute of limitation under the doctrine of Patterson v. Rousney, supra, the plaintiff brought his action within time, and the court properly rendered judgment for him."

Equally strong and to the point are the opinions of that same court in the cases of Patterson v. Rousney, 58 Okl. 185, 159 Pac. 636, and Maine v. Edmonds, 58 Okl. 645, 160 Pac. 483.

It is quite clear that the Supreme Court of the present state of Oklahoma holds that judgments recovered in what was formerly Indian Territory are governed by the limitation laws of Arkansas in force in the Indian Territory. Under those laws, the judgment in question was still alive in Oklahoma when the suit was instituted in Corpus Christi, Tex., a few days before the judgment was 10 years old. Not only so, but being instituted in Texas before it was 10 years of age, the action was not barred under the statutes of Texas. See article 5691, Vernon's Sayles' Revised Civil Statutes of Texas of 1914. Garrett had resided in Texas more than 10 years preceding the filing of this suit at Corpus Christi and was within the Texas statute just cited.

In view of another trial, however, we deem it proper to say that our courts, in deciding a case like the one at bar, will not take judicial notice of aforesaid decisions of the Supreme Court of Oklahoma. Upon another trial, counsel will have an opportunity to introduce in evidence such decisions as they think sustain their theories of the law they are urging.

We think the judgment was not shown to be dormant and that the action on it was not barred by any statute of limitation; that the defendant in error was not entitled to a peremptory instruction on that ground.

But it is contended by counsel for Garrett, in the second place, that the Ferguson-McKinney Dry Goods Company, a corporation, original plaintiff, was dissolved late in January, 1916, during the pendency of the case at bar; that the dissolution of said corporation abated the suit at that very time; that, when the Ferguson-McKinney Manufacturing Company, the successor corporation to the original plaintiff, filed a supplemental petition in 1921, five years later, asking to be substituted as plaintiff, as assignee of the original plaintiff...

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    ...by the Court of Civil Appeals was clearly made on appeal by the Commission of Appeals; see their opinion in Ferguson-McKinney Dry Goods Co. v. Garrett, 252 S.W. 738, at page 740. The Court of Civil Appeals apparently held that the suit against Garrett on the judgment was barred by limitatio......
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