Houston Fire & Cas. Ins. Co. v. Falls
| Decision Date | 01 July 1960 |
| Docket Number | No. 6575,6575 |
| Parties | HOUSTON FIRE AND CASUALTY INSURANCE COMPANY, a corporation, Plaintiff-Appelle, v. D. W. FALLS, Defendant-Appellant. |
| Court | New Mexico Supreme Court |
Owen B. Marron, David W. King, Albuquerque, for appellant.
Gilbert, White & Gilbert, Santa Fe, for appellee.
This is an action brought by appellee (plaintiff below) seeking judgment against appellant D. W. Falls (defendant below) on a default judgment entered by the district court of Carter County, Oklahoma.
Appellant answered appellee's complaint, denying the indebtedness and denying that the Oklahoma judgment is a valid judgment entitled to full faith and credit; appellant also alleged that no process was issued and served upon the defendant, D. W. Falls; that the individual answer filed by the defendant, Stone, raised the issue that the note sued upon was executed without consideration and that the said note was an illegal transaction, and also alleged that the jury trial on Stone's individual defense resulted in a verdict for the defendants; and that the record in the Oklahoma court shows affirmatively that there was no authority in any attorney to enter the appearance of D. W. Falls. The case was tried by the district court of Bernalillo County without a jury; judgment was rendered for appellee; and appellant, Falls, brings this appeal.
Appellee originally filed suit on February 13, 1952, in the district court of Carter County, Oklahoma, against D. W. Falls and H. L. Stone, co-partners doing business as Stone & Falls, and as Stone Construction Co., defendants, seeking judgment on a promissory note executed on April 12, 1948, by D. W. Falls, acting on behalf of said partnership, Stone & Falls, and in the firm name.
On March 10, 1952, a demurrer was filed to appellee's petition by the defendants, D. W. Falls and H. L. Stone, co-partners doing business as Stone & Falls, and is signed, Champion & Wallace, attorneys for D. W. Falls and H. L. Stone. On April 21, 1952, an order of the district court was filed granting the defendants, D. W. Falls and H. L. Stone, co-partners, doing business as Stone & Falls, thirty days within which to file their answer. On April 26, 1952, an order was filed overruling the demurrer of D. W. Falls and H. L. Stone, and the said order in part recites:
'* * * this cause comes on for hearing upon the demurrer of the defendants, D. W. Falls and H. L. Stone, co-partners doing business as Stone & Falls and Stone Construction Company, * * * said defendants appearing by their attorneys, Champion & Wallace, * * * the demurrer of the defendants, D. W. Falls and H. L. Stone, co-partners doing business as Stone & Falls and Stone Construction Company, be and the same is hereby overruled, * * *.'
The order appears to have been approved as to form and signed by plaintiff's attorneys, and by Champion & Wallace, attorneys for said defendants.
On May 15, 1952, another order granting defendants additional time to answer, signed by the district judge, was filed and which said order, among other things, provides: 'This matter coming on this 15 day of May, 1952, upon the oral application of D. W. Falls and H. L. Stone, co-partners dba Stone and Falls and as Stone Construction Company, * * *.'
On June 14, 1952, another order was filed granting defendants additional time to answer and which said order, among other things, provides: '* * * upon the oral application of D. W. Falls and H. L. Stone, co-partners, d/b/a Stone and Falls and as Stone Construction Company * * *.'
On October 21, 1952, an order duly signed by the district judge was entered setting the case for trial on the 3rd day of November, 1952. On October 30, 1952, an order of the district court was filed granting defendants, D. W. Falls and H. L. Stone, additional time to answer, which said order among other things, provides: '* * * upon the oral application of the defendants, D. W. Falls and H. L. Stone, * * *.'
On November 5, 1952, a separate answer of H. L. Stone, individually, was filed by his attorneys, Champion, Champion & Wallace, alleging that under the partnership agreement between Stone and Falls neither party could obligate the partnership for more than $500, and further alleging that said note was not executed for any valuable consideration. Stone further alleged that Falls lacked the authority to bind Stone or the partnership by his signature on the promissory note.
On November 12, 1952, a first amended separate answer of H. L. Stone was filed by Champion & Wallace, attorneys for H. L. Stone.
On November 21, 1952, appellee filed its reply to the first amended separate answer of Stone, generally denying the allegations of said first amended separate answer.
On January 25, 1954, H. L. Stone, individually, filed a second amended separate answer, setting up substantially the same matters alleged in the first amended separate answer, but there was also contained in said pleading a cross-petition, which reads in part as follows: 'Comes now the defendants, H. L. Stone and D. W. Falls, d/b/a Stone and Falls, and for their Cross-Petition against the plaintiff, Houston Fire and Casualty Insurance Company, alleges and states: * * *.' Said cross-petition, in the prayer, states: 'Wherefore, these cross-petitioners pray the court for judgment, * * *.' The cross-petition appears to be signed by Champion & Wallace, attorneys for cross-petitioners, and appears to have been verified by H. L. Stone as one of the co-partners.
On February 26, 1954, appellee filed a reply to the second amended separate answer of Stone, alleging in effect the same matters set out in their reply to the first amended separate answer.
The issues thus framed by the petition and the separate answer of Stone were tried with a jury and the jury returned its verdict for the defendants.
On May 10, 1954, appellee filed a motion for judgment notwithstanding the verdict and also filed a motion for new trial. On June 9, 1954, a journal entry of judgment was filed, reciting the verdict of the jury and adjudging that plaintiff take nothing by its petition herein. On November 9, 1954, an order was entered setting the motion to vacate and motion for new trial for hearing on November 15, 1954, and a new trial was granted but an order was not filed in the proceedings.
On October 20, 1956, a motion was filed by Stone, through his attorney, Wilson Wallace, for a continuance, setting up, among other things: '* * * that this cause is set for trial on the 22nd day of October, 1956.' On October 23, 1956, an order was entered by the district court, which reads as follows:
'Now on this the 20th day of October, 1956, this cause comes on to be heard upon the motion of the defendant H. L. Stone for a continuance of this cause; and the Court having heard said motion and being sufficiently advised in the premises finds that said motion should be granted and this cause continued as to said defendant.
'It Is, Therefore, Ordered That this cause be and is hereby continued from its present setting as to the defendant, H. L. Stone only.'
On the same day, October 23, 1956, the journal entry of judgment, which is the judgment sued upon by appellee, was filed. Said judgment provides:
'Now on this the 22nd day of October, 1956, this cause comes on to be tried in its regular order pursuant to previous assignment thereof for trial on this date as to the defendant D. W. Falls; the matter having been continued as to the defendant H. L. Stone by order of the Court made and entered herein on October 20, 1956.
'Thereupon the plaintiff waived trial by jury and agreed to submit all issues of fact as well as of law to the Court; and the Court having heard the allegations of plaintiff's petition and the evidence submitted in open court in support thereof, and being fully advised in the premises and upon consideration thereof finds that all the material allegations of plaintiff's petition with respect to the execution and delivery of the note sued upon herein are true; that the partnership of Stone & Falls has now been dissolved and liquidated, and that plaintiff is entitled to judgment against defendant D. W. Falls as prayed for.
'It Is Therefore, Ordered, Adjudged And Decreed By the Court that the plaintiff do have and recover of and from the defendant, D. W. Falls the sum of $5,717.73 with interest thereon at the rate of three per cent (3%) per annum from the 12th day of April, 1948, until paid, and the further sum of $717.50 attorneys fee and that all costs of this action be taxed against said defendant; and for all of which let execution issue.'
Appellant assigns two points of error, as follows:
'Point I
'The Trial Court erred in concluding that the default judgment entered in favor of appellee against appellant by the Oklahoma District Court is entitled to full faith and credit under the Constitution of the United States.
'Point II
'The Trial Court erred in refusing to grant a continuance for trial of the issue as to whether the Oklahoma attorney had authority to enter the appearance of appellant in the Oklahoma proceeding.'
Under point I appellant contends that the Oklahoma district court judgment is not entitled to full faith and credit for three reasons: (1) That no process was served upon D. W. Falls and therefore the judgment is void; (2) That in the Oklahoma cause, the answering partner, Stone, raised certain defenses alleging that the note sued upon was...
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