Johnson v. Di Giovanni

• Decision Date: 01 October 1956
• Docket Number: No. 75,75
• Citation: 347 Mich. 118,78 N.W.2d 560
• Parties: Joe JOHNSON, Plaintiff and Appellee, v. Jack DI GIOVANNI et al., Defendants and Appellants.
• Court: Michigan Supreme Court

Page 560

78 N.W.2d 560

347 Mich. 118

Joe JOHNSON, Plaintiff and Appellee, v. Jack DI GIOVANNI et al., Defendants and Appellants.

No. 75.

Supreme Court of Michigan.

Oct. 1, 1956.

Samuel H. Rubin, Detroit, for appellants. Phyllis Rubin, Detroit, of counsel.

Louis J. Colombo, Jr., Detroit, for appellee.

Before the Entire Bench.

EDWARDS, Justice.

Citizens of one of our sister states still refer to it as 'The Republic of Texas.' Herein a number of Michigan residents have become acquainted with one of its frontier ways in the field of law. Our basic question: Is a Texas judgment, based on statutes and rules which are rough to our legal palate, enforcible in Michigan?

Texas has had for many years two statutes concerning appearances in its courts which, in effect, made any appearance (special or personal) a general appearance for purposes of jurisdiction.

"An answer shall constitute an appearance of the defendant so as to dispense with the necessity for the issuance or service of citation upon him." Vernon's Revised Civil Statutes of Texas, Art. 2047.

'If the citation or service thereof is quashed on motion of the defendant, such defendant shall be deemed to have entered his appearance at ten o'clock a. m. on the Monday next after the expiration of twenty (20) days after the day on which the citation or service is quashed, and such defendant shall be deemed to have been duly served so as to require him to appear and answer at that time, and if he fails to do so, judgment by default may be rendered against him.' Vernon's Revised Civil Statutes of Texas, Cum.Supp.1956, Art. 2092, § 8.

Effective January 1, 1955 court rules containing identical language were published which apparently superseded the above. Texas Rules of Civil Procedure 1955, rules 121 and 122.

At the outset we dispose of one issue by taking judicial notice of the above under C.L. 1948, §§ 617.25-617.27, Stat.Ann. §§ 27.874-27.876, specifically authorizing our courts to take judicial notice of the statutes of sister states. See, also Slayton v. Boesch, 315 Mich. 1, at page 7, 23 N.W.2d 134.

Several of our Michigan citizens ran afoul of the quoted rules in the following manner (all of the facts recited hereafter being drawn from sworn pleadings and affidavits in this cause, since no testimony has ever been taken before a Michigan court):

One Joe Johnson, a resident of hte state of Texas, brought suit in assumpsit in the 111th District Court in Webb County of that state against Jack DiGiovanni, a Michigan resident, and Shippers Service Company, a Michigan co-partnership. Plaintiff in the Texas action served one Ben A. Eisenberg as the agent of the defendant, Shippers Service Company, and filed proof of service indicating as much. The record does not disclose any other attempt by plaintiff to serve the defendants in the Texas cause.

However, on February 25, 1955, two Detroit attorneys representing defendant, Shippers Service Company, dispatched to the clerk of the 111th District Court of Texas a 'special appearance and motion to quash service' attaching thereto a sworn affidavit signed by defendant, Jack DiGiovanni. The motion and affidavit recited defendants' contentions that all of the defendants were residents of the state of Michigan, that none of them had received personal service, and that Ben A. Eisenberg was not an agent for the defendants, or any of them, but was, on the contrary, an agent for the plaintiff. The special appearance and motion terminated with a prayer for quashing of service upon the defendants. The two attorneys in question were not at any of the relevant times licensed to practice law in the courts of the state of Texas, although both were duly licensed to practice law in the state of Michigan.

Under date of April 7, 1955, the clerk of the court responded with the following communication 'April 7, 1955

'Messrs. Stone and Pliskow,

'Attorneys and Counselors,

'3309 Cadillac Tower,

'Detroit 26, Michigan.

'Ref: Cause No. 18,569, styled:

Joe Johnson v. Anthony

DiGiovanni, et al., in

111th Dist. Court, Webb Co.

'Dear Sirs: Attention Mr. Alan J. Stone

'Refer to your letter of February 25th, 1955.

'Under Rule 122 [Vernon's] Vernor's (sic) Annotated Texas Rules, the Judge of the District Court has ruled that the defendants you represent have entered an appearance in the above case, and has directed an entry in the docket, granting default judgment against Shippers Service Company and Jack DiGiovanni.

'April 30, 1955 at 10:00 o'clock A.M., is the time and hour set for a hearing on proof as to the amount of damages for the breach of contract.

'For your information, District Courts in Texas have control over judgments during the term. This term of Court expires on May 2, 1955.

'Very truly yours,

'Hugh S. Cluck,

'Clerk of the Dist. Courts, Webb Co., Texas.

'By /s/ Blas Garcia

'Blas Garcia, Deputy.'

Confronted with this communication, and the late-acquired knowledge that any further attempt to argue service or jurisdiction before the Texas court would even more certainly place them before it, defendants did nothing. On May 10, 1955, the Texas court entered a judgment against defendant, Jack DiGiovanni, and the defendant co-partnership, in the amount of $6,359.01, together with interest thereon at the rate of 6 percent.

Subsequently, on January 31, 1956, by amended declaration filed that date, plaintiff, Joe Johnson, brought suit in the Wayne Circuit Court of the state of Michigan upon the Texas judgment previously referred to, alleging that it had not been paid, and attaching to the declaration a copy of the judgment. Defendants answered by denying knowledge of the judgment and claiming that it was void because, (1) there was no personal service upon any of the defendants; (2) there was no general appearance by any of the defendants; (3) service upon Ben A. Eisenberg constituted fraud upon the Texas court in that Eisenberg was not an agent of any of the defendants, and finally, (4) no duly licensed attorney of the state of Texas entered any appearance for the defendants.

On motion for summary judgment a judgment was entered in the Wayne Circuit Court by Judge Wade H. McCree from which this appeal is now taken.

On appeal to this court defendants below and appellants here have confined their argument solely to the fourth of their defenses listed above.

It may, however, he well for us to note in passing that the Texas statute upon which the 111th District Court of Texas founded its jurisdiction has been passed upon and affirmed, as to its constitutionality in its application to residents of other states, by the Supreme Court of the United States in York v. Texas:

'The difference between the present rule in Texas and elsewhere is simply this: Elsewhere the defendant may obtain the judgment of the court upon the sufficiency of the service without submitting himself to its jurisdiction; in Texas, by its statute, if he asks the court to determine any question, even that of service, he submits himself wholly to its jurisdiction. Elsewhere he gets an opinion of the court before deciding on his own action; in Texas he takes all the risk.' 137 15, 20, 11 S.Ct. 9, 10, 34 L.Ed. 604, 605.

Additionally it should be noted that in a series of cases the Texas Supreme Court has held consistently that an outstate defendant who filed a special appearance and a motion to quash had submitted himself to the jurisdiction of the Texas court regardless of whether the motion was granted or denied. Western Cottage Organ & Piano Company v. Anderson, 97 Tex. 432, 79 S.W. 516; Central & M. R. Company v. Morris, 68 Tex. 49, 3 S.W. 457; Aetna Life Insurance Company v. Hanna, 81 Tex. 487, 17 S.W. 35. We note further that at no point in this proceeding do appellants claim lack of knowledge of the pendency of the Texas suit, or lack of sufficient time to appear and defend had they chosen so to do.

This brings us then to the final question wherein our unhappy appellant seeks to pry his leg loose from this technical trap by use of a technical log. Citing still more Texas law and rules, he contends that under the following the proceedings were a nullity from the beginning because his special appearance and motion to quash were filed by Michigan lawyers not licensed to practice law in the state of Texas:

'All persons who are now or who shall hereafter be licensed to practice law in this State shall constitute and be members of the State Bar, and shall be subject to the provisions hereof and the rules adopted by the Supreme Court of Texas; and all persons not members of the State Bar are hereby prohibited from practicing law in this State.' Revised Civil Statutes of Texas, Article 320a-1, § 3.

'Any party to a suit may appear and prosecute or defend his rights therein, either in person or by an attorney of the court.' Texas Rules of Civil Procedure, Rule 7.

'A reputable, nonresident attorney, although not licensed to practice in Texas, may participate in the trial or hearing of any particular cause in this State, provided a resident practicing attorney of this State is actually employed and associated and personally participates with such nonresident attorney in such trial or hearing.' Rules Governing Admission to the Bar of Texas, as amended on January 27, 1954, Rule X(1).

The statute and rules quoted above were apparently admitted as a portion of the record before the Wayne Circuit Court entitled 'Exhibit A', as was a certain judges's certificate signed 'E. D. Salinas, Judge 111th Judicial District of Texas.'

The latter, after reciting receipt of appellant's special appearance and motion to quash, and quoting the accompanying letter, said as follows:

'In compliance therewith the District Clerk called this Court's attention to the Stone letter and received the Court's instruction to file it, as...