Liddell v. Blevins
| Citation | 244 S.W.2d 335 |
| Decision Date | 28 November 1951 |
| Docket Number | No. 12348,12348 |
| Parties | LIDDELL v. BLEVINS. |
| Court | Texas Court of Appeals |
E. T. Yates, Brownsville, for appellant.
Sharpe, Cunningham & Garza, Brownsville, for appellee.
This is an appeal from a judgment rendered against appellant, N. S. Liddell, by the District Court of Cameron County, Texas, in a suit upon a joint and several California judgment against Liddell and Raymond Lee Childress. The case was tried without a jury. Appellant here contends that the Superior Court of Contra Costa County never obtained jurisdiction over his person under its statutes providing for substituted service upon non-resident owners of motor vehicles, because (1) the notice provisions of the California statute were not complied with, (2) the judgment was rendered nunc pro tunc without notice to appellant, and (3) the California statutes are unconstitutional since they authorize service upon non-residents in 'all actions,' both criminal and civil, and that the statutes are therefore unconstitutional as to criminal actions. We overrule each of these points and affirm the judgment.
In 1948, the appellee, a resident of California, obtained judgment against Liddell and Childress for the sum of $10,000. The California judgment was rendered in October of 1948, but on June 13, 1949, the judgment was corrected. The corrected judgment recited that the former entry had inadvertently omitted dismissing certain parties and had also omitted the provision making the judgment joint and several against the two defendants, and that these were clerical errors not correctly stating the judgment as actually rendered and announced. After appellee obtained the California judgment, this action was commenced in Texas against Liddell only. The Texas suit alleged the California judgment in accord with Rule 55, Texas Rules of Civil Procedure, and also alleged the California statutes relating to non-resident service in such cases.
Appellant admitted the correctness of the pleaded statutes, and they required the California resident, in a suit against the nonresident owner of a motor vehicle, to serve the Director of Motor Vehicles of the State of California by leaving with him or in his office a copy of the summons and complaint, together with a fee of $2. That this initial step was taken is not questioned. The California statutes further required the 'plaintiff or his attorney' to send a 'notice of such service and a copy of the summons and complaint' to the defendant by registered mail, and proof of this mailing may be made by the affidavit of the plaintiff or his attorney, together with the production of a return receipt for registered mail of the United States post office, which receipt must bear the signature of the defendant. From these statutes it appears that Liddell was entitled to receive three different documents. They were, (1) notice of service upon the Director of Motor Vehicles of the summons and complaint, (2) copy of the summons, and (3) copy of the complaint.
Plaintiff proved his case by offering in evidence the California statutes, an authenticated copy of the judgment, the notice of filing and service of summons and complaint on the Director of Motor Vehicles, the return receipt of registered mail signed by Liddell, and the affidavit of service, stating that affiant had sent by registered mail to N. S. Liddell the notice, summons and complaint. The affidavit was signed by John T. Williams.
Appellant, in his attack upon the sufficiency of the documents he received, reasons that the California definitions of 'notice,' 'summons,' and 'complaint' were not proved, and for that reason they will be presumed to bear the Texas definitions. From this presumption he concludes that when the California statute speaks of a copy, it means a 'certified' copy. He further attacks the notice and complaint because he states they were not proved to have been signed by plaintiff's attorney.
In addition to the proof that was offered by the appellee, there are certain presumptions in favor of the California judgment which cast upon the appellant the burden of an affirmative showing that there was an omission of some requisite to a valid judgment.
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Mitchim v. Mitchim
...Nat. Bank & Trust Co. of Oklahoma City, Okl., Tex.Civ.App., 186 S.W.2d 747; Gard v. Gard, Tex.Civ.App., 244 S.W.2d 884; Liddell v. Blevins, Tex.Civ.App., 244 S.W.2d 335. We think the burden was on appellees to establish that the judgment was not final and subsisting or that the court did no......
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Gunther v. Gunther, 594
...the parties unless and until such jurisdiction is disproved by extrinsic evidence or by the record. Liddell v. Blevins, 244 S.W.2d 335 (Tex.Civ.App.--San Antonio 1951, writ ref'd n.r.e.); Rule 55, Tex.R.Civ.P. The parties here, however, offered nothing to the trial court to shed light upon ......
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Dowden v. Fischer, 3764
...that the notice or service differed from that required by Texas law. The San Antonio Court decided this contention in Liddell v. Blevins, 244 S.W.2d 335, 337, writ refused. There appellant, in an attack on a sister state decree, contended that since California law as to notice was not prove......
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Silberstein v. State
...writ ref'd n.r.e.). This is a plenary power and the court was not required to give notice to the parties. Liddell v. Blevins, 244 S.W .2d 335 (Tex.Civ.App.1951, writ ref'd n.r.e.); Gulf, C. & S.F. Ry. Co. v. Morrow, 66 S.W.2d 481 (Tex.Civ.App.1933, writ dism'd); Daniel v. Sharpe,69 S.W.2d 5......