Marsh v. Millward

• Decision Date: 10 June 1964
• Docket Number: No. 11208,11208
• Citation: Marsh v. Millward, 381 S.W.2d 110 (Tex. Ct. App. 1964)
• Parties: C. N. MARSH, Appellant, v. Price MILLWARD, Appellee.
• Court: Texas Civil Court of Appeals

Page 110

381 S.W.2d 110

C. N. MARSH, Appellant, v. Price MILLWARD, Appellee.

No. 11208.

Court of Civil Appeals of Texas, Austin.

June 10, 1964.

Rehearing Denied July 8, 1964.

Sneed & Vine, J. P. Darrouzet, Austin, for appellant.

Powell, Rauhut, McGinnis, Reavley & Lochridge, Donald F. Nobles, Austin, for appellee.

HUGHES, Justice.

This is a suit based on judgments rendered in the States of Wyoming and Colorado. The Wyoming judgment was rendered first and the Colorado judgment was based on and brought to enforce the Wyoming judgment. The Trial Court, in a summary judgment proceeding, held that both foreign judgments were entitled to full faith and credit in Texas and he rendered judgment for the single sum involved in such judgments, plus interest and costs.

Appellant, against whom such judgment was rendered, is C. N. Marsh. Appellee is Price Millward.

Appellant has one point of error which is that summary judgment was improper because there were disputed, material issues of fact.

Appellee filed his Motion for Summary Judgment on November 1, 1963, and at the same time he filed a motion under Rule 184a, Texas Rules of Civil Procedure, for the Trial Court to take judicial notice of certain laws, Statutes and Court Rules, of the States of Wyoming and Colorado.

Appellant contends that such Statutes and Rules of which the Court was asked to take judicial notice form no part of the record in a summary judgment proceeding and should not have been looked to by the Court in determining its judgment herein.

We agree that the laws of Wyoming and Colorado, properly established, are not a part of the 'record' in a summary judgment proceeding. Rule 166-A(c) T.R. C.P., states the components of a record in a summary judgment proceedings. It does not, and should not, include the laws or Court Rules of this or any other State or jurisdiction. These are matters of which Courts take judicial knowledge in the manner prescribed by law. Rule 184a, supra, merely provides the manner in which laws of other jurisdictions are brought within the judicial knowledge of the Judge. When this is done Courts have the same judicial knowledge of foreign laws that they have of their own laws. The Court below was not in error in taking judicial notice of the Statutes and Rules of Wyoming and Colorado brought to his attention in conformity with our Rule 184a. We also will take judicial notice of the same laws.

The facts disclosed by the record are:

On October 19, 1960, appellee sued appellant in Civil Action No. 1224 in the District Court, Third Judicial District, Teton County, Wyoming. Appellant was duly served with process in Wyoming on October 20, 1960. On May 15, 1961, appellant having failed to answer the suit, the Court rendered a default judgment against appellant.

On January 11, 1962, appellee sued appellant in Cause No. 6197, in the District Court of Rio Grande County, Colorado, on the Wyoming judgment. Appellant was personally served with process in Colorado. On January 27, 1962, appellant's Colorado attorneys filed a motion to dismiss the suit for failure to state a cause of action. This motion, at appellee's request and upon notice to appellant, was set for hearing and overruled by the Court on September 5, 1962, and appellant was ordered to answer within twenty days or be in default. Neither appellant nor his counsel attended this hearing. Default judgment was rendered against appellant on October 8, 1962, appellant having been notified by notice to his attorneys of the time and place appellee would appear and move for such judgment.

On August 28, 1963, this suit was filed. Appellant answered by alleging, not under oath, that both the Wyoming and Colorado judgments were procured by fraud.

On November 1, 1963, appellee filed his motion for summary judgment. Attached to this motion were (1) a certified and exemplified copy of the Wyoming judgment and an affidavit of the Clerk of the Court in which the judgment was rendered stating that no motion to vacate the default judgment against appellant had been filed, nor had any other action been filed in such Court to vacate such judgment, and (2) a certified and exemplified copy of the Colorado judgment and a similar copy of appellee's notice of intent to take default judgment against appellant in the Colorado Court.

Appellant replied to this motion by alleging that 'a disputed fact exists in that defendant says the Wyoming judgment is wholly void for extrinsic fraud on the Court. * * *' and that 'the Colorado judgment was procured by fraud on the Court.' This answer also alleged, 'further assuming the Wyoming judgment to be valid, the Colorado (judgment) may not be used as the basis of a judgment in Texas since this judgment is not subject to comity nor full faith and credit, since it is a judgment upon a judgment and as such they do not merge.' ¹

Attached to this answer was an affidavit verifying that a motion was filed in the Colorado case by appellee requesting a change in the place of trial of such suit from Rio Grande County to Alamosa County and that an order of the Court was entered granting such motion.

The fraud which appellant had pleaded in his unsworn answer herein was, with respect to the Wyoming judgment that the suit had been compromised and appellee had agreed to dismiss the suit and that the default judgment was taken in violation of this agreement.

Similarly, the fraud pleaded by appellant with respect to the Colorado judgment was and we quote:

'If the same be necessary, Defendant says that on January 11, 1962, Plaintiff instituted suit against Defendant in Cause No. 6197, in the District Court of Rio Grande County, Colorado; that said suit was upon the Wyoming judgment as above pleaded; a copy of which judgment was attached to the Complaint (being Colorado's name for the Plaintiff's pleadings instituting a suit); that Defendant was served in said case in Colorado; that subsequent thereto Defendant engaged counsel, to-wit: the law firm of Moses and Desouchet, Attorneys, Alamosa, Colorado, to represent him in the Colorado law suit; that subsequent thereto, Defendant never heard from or received communication from said firm, nor heard of or about the said law suit pending in Colorado until the filing of this case.

'Defendant further says that subsequent to his retention of said law firm of Moses and Desouchet as above pleaded, that on or about January 27, 1962, said law firm entered a pleading in said cause in behalf of Defendant, moving the Court to dismiss the case because the Complaint failed to state a claim upon which relief could be granted; that subsequent thereto, upon notice certified by counsel for Plaintiff, the Court, acting in Chambers, and without the knowledge of Defendant, entered an order without Defendant appearing and without Defendant's counsel appearing, overruling the said motion to dismiss; that this was done on September 5, 1962, in Alamosa, Colorado; that on the 26th day of september, 1962, the Court, sitting at Alamosa, Colorado, entered a judgment by default against Defendant; that on the 4th day of October, 1962, and without the knowledge of Defendant, his counsel, Moses and Desouchet, withdrew from the case with permission of the Judge, and without permission from Defendant, which order was filed in said Court on the 5th of October, 1962; thereafter, on the 8th day of October, 1962, the Court, ex parte--without notice to Defendant, when he was without counsel, changed the place of hearing and the Court--from the District Court of Rio Grande County, Colorado, to the District Court of Alamosa County, Colorado, and on the same day entirely removed from the place and county in which the case was originally filed, the Court entered judgment upon the Wyoming judgment, specifically reciting therein that same was upon said Wyoming judgment.

'Defendant further says, that the judgment of the Court in Alamosa County, Colorado, was wholly void in that the same was founded upon a wholly void judgment of Wyoming; that the same was improperly and unlawfully handed down in that it failed to...