Hastings v. Bushong

• Decision Date: 11 April 1923
• Docket Number: (No. 6930.)
• Citation: 252 S.W. 246
• Parties: HASTINGS v. BUSHONG et al.
• Court: Texas Court of Appeals

252 S.W. 246

HASTINGS v. BUSHONG et al.

(No. 6930.)

Court of Civil Appeals of Texas. San Antonio.

April 11, 1923.

Rehearing Denied May 16, 1923.

Appeal from District Court, Tarrant County; R. E. L. Roy, Judge.

Action by James J. Hastings against Hattie J. Bushong and others. From judgment for defendants, plaintiff appeals. Reversed and remanded.

Sam J. Hunter, Chas. B. Stewart, and Lem Billingsley, all of Fort Worth, for appellant.

Frank R. Graves and G. R. Lipscomb, both of Fort Worth, for appellees.

COBBS, J.

Appellant sued appellee by two separate suits in the Seventeenth district court of Tarrant county. The first suit was filed to the April term, 1920, and the second on the 8th day of June, 1921. The first was to recover on the note, and the second was an action to enforce a judgment on said note obtained by appellant against appellee in the circuit court of Stevenson county, Ill., for the amount of $1,833.87.

The parties and subject-matter of the two suits filed in the Seventeenth district court were identical, save, in the last case, it was on the judgment rendered in the circuit court of Illinois on the same note set out in the first suit. No disposition was made of the first suit in the Seventeenth district court, and apparently it had not relinquished jurisdiction.

The judgment of the Illinois court rendered upon the note, the basis of this suit, is as follows:

"And now on this day came the said plaintiff by Robert A. Hunter, Esq., his attorney, and files a declaration in action of trespass on the case on promises against the said defendant, and files also a warrant of attorney, signed and sealed by the said defendants Hattie J. Bushong, J. L. Bushong; the execution of which is duly proven to the satisfaction of the court (by declaration on file) authorizing any attorney of any court of record to appear in this court, waive service of process, and confess judgment in favor of the said plaintiff and against the said defendants for the amount due upon a certain promissory note. Annexed to said warrant of attorney also for the sum of ____ dollars attorney's fees besides the cost of this suit. Thereupon came also George F. Korf, Esq., an attorney of this court in behalf of said defendants, and files his cognovit by which he waives service of process and confesses and consents that judgment may be entered in favor of the said plaintiff and against the said defendants for the sum of $1,833, it being the amount due upon said note, including attorney's fees. And the said attorney releases all errors in entering up this judgment (either in law or equity) or in issuing execution thereon, and consents to the issuing of immediate execution on the same. It is thereupon considered and ordered by the court that the said plaintiff have and recover of the said defendant his damages for the said sum of $1,833.89, so as aforesaid confessed, together with costs and charges by him about this suit in this behalf expended, and that he have execution for the same."

The judgment was predicated upon the following note:

                "$1,325.00     Chicago, Ill., Apr. 1, 1912
                

"On demand after date for value received, we promise to pay to the order of Charlotte Hastings and James J. Hastings thirteen hundred twenty-five dollars at 4206 Michigan Ave. Chicago, Ill., with interest at 7 per cent. per annum after this date until paid.

"And to secure the payment of said amount hereby authorize, irrevocably, any attorney of any court of record to appear for in such court, in term time or vacation, at any time hereafter, and confess a judgment without process, in favor of the holder of this note, for such amount as may appear to be unpaid thereon, together with costs, and ____ dollars attorney's fees, and to waive and release all errors which may intervene in any such proceedings, and consent to immediate execution upon such judgment, hereby ratifying and confirming all that said attorney may do by virtue thereof.

                   "[Signed]             Hattie J. Bushong
                                        "J. L. Bushong."
                

The law of Illinois introduced in evidence on the subject authorizing such judgments is as follows:

"Section 88. Any person for a debt bona fide due may confess judgment by himself or attorney duly authorized, either in term time or vacation, without process. Judgments entered in vacation shall have like force and effect, and, from the date thereof become liens in like manner and extent as judgments entered in term."

Appellee defended upon the ground that the judgment was void and a nullity, because defendant was never served with notice of the pending of the suit, and denied it was obtained upon due and legal service of any character, and the attorney confessing judgment was unauthorized.

Upon the trial in the Tarrant county district court the proceedings of the Illinois court, the original note, and the Illinois laws were introduced in evidence. Appellees' testimony was to the effect that the signatures to the note were theirs, but a general denial of the note in all other respects, and that they were never served or had notice of the Illinois suit, and never lived in Illinois, but lived in Texas since 1884. The court entered judgment for the appellees.

Ordinarily a foreign judgment must be interpreted to have the same legal effect as if it were rendered by our own courts. Full faith and credit should be given it. Porcheler v. Bronson, 50 Tex. 561. Of course the laws relied upon to support such judgments must be alleged and proven. Cavazos v. Trevino, 35 Tex. 165; Andrews v. Hoxie, 5 Tex. 193; Powell v. De Blane, 23 Tex. 66; Ogg v. Ogg (Tex. Civ. App.) 165 S. W. 912.

The practice of entering judgments on warranties, though now unauthorized in Texas, was a very old one. 2 Chitty Pr. 224, note to 13 L. R. A. 796. Such judgments have been and are supported by the Illinois courts, not necessary to cite the many cases. Poppers v. Meager, 33 Ill. App. 113; Teel v. Yost, 128 N. Y. 387, 28 N. E. 353, 13 L. R. A. 796.

The note upon which the judgment was procured was introduced in evidence and the signatures thereto were admitted as genuine.

There was no effort to defeat the judgment predicated upon any alleged fraud or trickery used to procure their signatures, or that their signatures were forgeries, or that the judgment had been satisfied, and, of course, as the power of attorney or warrant was embraced in the note, there was no effort to defeat it on the ground of forgery.

The presumption arises that the note in its fullest and most extended terms was the genuine obligation of appellee giving ample authority to any attorney to confess judgment. Shumway v. Stillman, 6 Wend. (N. Y.) 453; Teel v. Yost, 128 N. Y. 387, 28 N. E. 353, 13 L. R. A. 796.

Having admitted they signed the note, it is immaterial that they neither knew nor authorized George F. Korf, the alleged attorney, personally otherwise to confess judgment. That was part of the obligation itself, the record showing he qualified under the powers contained in the obligation. The Illinois court necessarily passed upon the subject before it, as well as his qualifications, so appellee must be irrevocably held by it in this proceeding. First Nat. Bank v. Seass, 158 Ill. App. 122; Teel v. Yost, supra; Sipes v. Whitney, 30 Ohio St. 69; Coleman v. Walters, 13 W. Va. 278; Nicholas v. Farwell, 24 Neb. 180, 38 N. W. 820; Snyder v. Critchfield, 44 Neb. 66, 62 N. W. 306; Ferguson v. Oliver, 99 Mich. 161, 58 N. W. 43, 41 Am. St. Rep. 593.

We agree with the contention of appellee, that a judgment of a sister state may be impeached and not in every instance be recognized when the grounds of the attack are sufficient, just as it has been held in such cases in this state. Banco Minero v. Ross, 106 Tex. 522, 172 S. W. 711; Morris v. Bank of Commerce, 67 Tex. 602, 4 S. W. 246; Grubbs v. Blum, 62 Tex. 426; Strasburger v. Heidenheimer, 63 Tex. 5. In entering judgments such as shown in the last-cited case it affords a good illustration that everything must be done strictly in pursuance with the contract and the power therein vested.

It nowhere appears that the warrant of the attorney to appear in ...