Jack H. Brown & Co. v. Northwest Sign Co., 05-83-00887-CV

• Decision Date: 27 January 1984
• Docket Number: No. 05-83-00887-CV,05-83-00887-CV
• Citation: Jack H. Brown & Co. v. Northwest Sign Co., 665 S.W.2d 219 (Tex. App. 1984)
• Parties: JACK H. BROWN & CO., Appellant, v. NORTHWEST SIGN COMPANY and Republic National Bank in Dallas, Appellees.
• Court: Texas Court of Appeals

Page 219

665 S.W.2d 219

JACK H. BROWN & CO., Appellant, v. NORTHWEST SIGN COMPANY and Republic National Bank in Dallas Appellees.

No. 05-83-00887-CV.

Court of Appeals of Texas Dallas.

Jan. 27, 1984.

Steven E. Clark, Goins & Underkofler, Charles L. Perry, Seay, Gwinn, Crawford & Womble, Dallas, for appellant.

Bertran T. Bader, III, Cox & Bader, Dallas, for appellees.

Before GUITTARD, C.J., and STEWART and SHUMPERT, JJ.

GUITTARD, Chief Justice.

In this proceeding to enforce a foreign judgment appellee has moved to dismiss the appeal. Appellee questions whether an appeal has been perfected from the original filing or the subsequent filing of a foreign judgment pursuant to Article 2328b-5 of the Texas Revised Civil Statutes (Vernon Supp.1982-83). We find that we have no appeal before us from the first filing, which was ineffective because it did not comply with the statute. We hold that appellant has properly perfected an appeal from the second filing and, therefore, we overrule the motion to dismiss.

The judgment in question was recovered in a suit in a district court in Idaho. The Idaho complaint names as defendants "Signgraphics, Inc., a foreign corporation with its principal place of business in Dallas, Texas," and also "John Does I through X," who, it alleges, are "unknown partners ... doing business under the name of Signgraphics." The return on the nonresident process shows that it was served in Dallas, Texas, on "Signgraphics, delivering to its registered agent for service Jack H. Brown." The judgment, although it refers to "defendants" in the plural, awards recovery of $1,951.47 "against defendant, Signgraphics, jointly and severally."

This judgment was filed in a district court of Dallas County on April 14, 1982, together with an affidavit of counsel, in attempted compliance with article 2328b-5 of the Texas Revised Civil Statutes (Vernon Supp.1982-83), which provides in part:

Sec. 2 A copy of any foreign judgment authenticated in accordance with an act of congress or statutes of this state may be filed in the office of the clerk of any court of competent jurisdiction of this state. The clerk shall treat the foreign judgment in the same manner as a judgment of the court in which the foreign judgment is filed. A filed foreign judgment has the same effect and is subject to the same procedures, defenses, and proceedings for reopening, vacating, staying, enforcing, or satisfying as a judgment of the court in which it is filed.

Sec. 3(a) At the time a foreign judgment is filed, the judgment creditor or the judgment creditor's attorney shall file with the clerk of the court an affidavit showing the name and last known post office address of the judgment debtor and the judgment creditor.

However, the judgment was not authenticated as required by the statute. The affidavit of counsel avers that the name of the judgment debtor is "Signgraphics, Inc.," and does not mention any other defendant.

On January 24, 1983, appellee applied for a writ of garnishment requiring Republic National Bank of Dallas to answer whether it was indebted to Signgraphics, Inc. The garnishee filed an answer admitting that it was indebted to Jack H. Brown and Company, doing business as Signgraphics, in an amount in excess of the judgment. On March 22 the court signed an order reciting that a motion to dissolve the writ of garnishment had been filed by "Jack Brown and Company, Inc., d/b/a Signgraphics." This order overrules the motion to dissolve and directs the garnishee to "hold in reserve until further ruling $2,500 in Account No. 267-031-3 garnished by Northwest Sign Co. in this action."

On March 25, apparently as a result of a suggestion by the judge at the hearing on the motion to dissolve, appellee filed an identical copy of the Idaho judgment, this time properly authenticated, and other papers in the Idaho suit. The affidavit of counsel accompanying this judgment avers that the name of the judgment debtor is "Signgraphics, Inc., John Does I through X d/b/a Signgraphics, a proprietorship or partnership." On April 22 "Jack H. Brown and Company, Inc." filed its "Motion to Vacate Enforcement of Foreign Judgment or Alternatively Motion for New Trial," alleging that the judgment debtor was "Signgraphics, Inc.," a corporation, but that plaintiff had instead garnished the bank account of "Jack H. Brown & Company, Inc. d/b/a Signgraphics." This motion bore the number and style of the garnishment action, but at a hearing on May 6, was changed with permission of the judge to bear the number and style of the original filing against "Signgraphics." After taking the matter under advisement, the judge signed an order on June 16 overruling the motion and denying all relief. This order has no effect on this appeal because the motion for new trial was overruled by operation of law on June 8, seventy-five days after the date the judgment was filed. TEX.R.CIV.P. 329b(c). The judge also signed an order on June 30 overruling the motion to dissolve the writ of garnishment and awarding judgment against the garnishee bank for principal and interest on the Idaho judgment.

On July 7 Jack H. Brown and Company, Inc. filed in both causes a cost and supersedeas bond reciting the filing of the foreign judgment on March 24 (sic) and the garnishment judgment of June 30. (On timely motion, this court extended...