Mauritz v. Schwind

• Decision Date: 04 January 1937
• Docket Number: No. 4667.,4667.
• Citation: 101 S.W.2d 1085
• Parties: MAURITZ et al. v. SCHWIND et al.
• Court: Texas Court of Appeals

Page 1085

101 S.W.2d 1085

MAURITZ et al. v. SCHWIND et al.

No. 4667.

Court of Civil Appeals of Texas. Amarillo.

January 4, 1937.

Rehearing Denied February 15, 1937.

COPYRIGHT MATERIAL OMITTED

Appeal from District Court, Jackson County; J. P. Pool, Judge.

Suit by Laura E. Schwind and others against T. N. Mauritz and others, wherein defendants filed a cross-action against plaintiffs and Frank L. Brown and another. From an adverse judgment, defendants appeal.

Reversed and remanded.

Rose & Sample, of Edna, and P. R. Rowe, Jr., Albert P. Jones, and Baker, Botts, Andrew & Wharton, all of Houston, for appellants.

Edw. C. Thomas, J. W. Ragsdale, and Linebaugh & Guittard, all of Victoria, for appellees.

MARTIN, Justice.

Laura E. Schwind and Faith Summers, mother and daughter, joined pro forma by their respective husbands, sued appellants for about 2,500 acres of land in the aggregate, consisting of a large number of small tracts in two adjoining subdivisions. Appellants thereafter filed a cross-action against the above parties, together with Frank L. Brown and Valley Fruit Farm & Garden Company (hereafter referred to as the Company) as additional parties.

Appellants briefly and in substance pleaded:

1. A purchase of all of said land at valid tax sales held in 1931 and 1932.

2. Purchase of same at trustee's sale in 1932, under foreclosure of a valid trust deed against said land, given to secure the amount of an indebtedness then past due and unpaid.

3. In the alternative, for foreclosure of certain alleged liens.

Trial was to the court. Judgment for appellees, except as to a minor matter, not necessary to mention.

The record in this case is lengthy and complicated. We are faced with a multitude of contentions, many of which we do not mention or discuss in view of the disposition we make of this case. Suffice it to say that the main question here so far as appellees are concerned revolves around the status of the "Company" as a corporation, at certain dates hereafter mentioned.

Some of the more essential facts are: The lands in question passed by mesne conveyances to the "Company," an Arizona corporation, which never had a permit to do business in Texas. All the stock in the Company was owned by appellees Laura E. Schwind and Faith Summers, on and prior to its alleged dissolution by the Arizona Corporation Commission, as hereafter more fully stated. On December 30, 1921, a trust deed was executed on the lands herein involved to secure a note for purchase money thereof in the sum of $49,288.50, dated October 31, 1919, payable five years after date, to the order of Lafayette Ward. A foreclosure suit was filed on this October 31, 1928. Thereafter, an extension agreement was delivered by the Company, extending the time of payment of said note to October 31, 1929. Subsequent to this, in 1931 and 1932, the said lands were sold to appellants at tax sale, and thereafter, in October, 1932, at substitute trustee's sale under a foreclosure of said trust deed. On June 27, 1928, the Arizona Corporation Commission entered a purported order dissolving the "Company" and declaring it legally dead. Additional facts will sufficiently appear in subsequent discussions of law questions involved.

It is here contended: (1) That the above extension agreement having been signed by the "Company" after its dissolution in fact amounted to no agreement, and therefore limitation had barred the note in question prior to the said foreclosure; and (2) the tax judgments in question were void because the real owners of said land, to wit, Laura E. Schwind and Faith Summers, were not parties thereto, the citation being to the Company and to "all persons owning or having or claiming any interest" therein, under article 7342, R.S. 1925.

Both these questions turn necessarily on whether or not said corporation was in fact dissolved and therefore legally dead after June, 1927, and the effect to be given to the purported action already mentioned of the Arizona Corporation Commission. To prove this important fact, and over appellants' objection, appellees first introduced its Exhibit No. 18, which was as follows:

"To all to Whom these Presents shall come, Greeting: I, M. C. Hankins, Secretary of the Arizona Corporation Commission, do hereby certify that the annexed is a true and complete transcript of the Articles of Incorporation of Valley Fruit Farm and Garden Company which were filed in the office of the said Arizona Corporation Commission on the 29th day of October, A. D. 1919 at 1:30 o'clock P. M. as provided by law, and of the

"Final Decree

"in the above entitled matter

"which was entered by the said Arizona Corporation Commission on the 28th day of June A. D. 1927, as provided by law.

"In Witness Whereof, I have hereunto set my hand and affixed the official seal of the Arizona Corporation Commission, at the Capitol, in the city of Phoenix, this 26th day of February, A. D. 1934.

                "[Seal]       [Signed] M. C. Hankins
                                           Secretary
                                 "By Asst. Secretary
                

"Arizona Corporation Commission

"(As a court of record)

"In the matter of Valley Fruit Farm & Garden Company No. 2352-C-29898

                "A Domestic Corporation    Final Decree
                

"In this action the Commission, as a court of record, having full and complete jurisdiction of the subject matter and of the above named corporation, and having heretofore, to-wit on the 27th day of December, 1923, made and entered its preliminary decree suspending the certificate of incorporation and the exercise of corporate powers by said above named corporation for and because of its failure, for two years or more, to file the annual report and pay the annual registration fee as required by law; and now more than six months having expired since making the preliminary decree aforesaid, and said corporation not having applied for reinstatement and having failed to pay such delinquent fees together with the costs of this action, as provided in chapter 36 of the Acts of the Regular Session of the Sixth Legislature of the State of Arizona (1923).

"It is therefore ordered, adjudged and decreed that said Valley Fruit Farm and Garden Company, a domestic corporation, be and the same is hereby declared to be legally dead, and the Certificate of Incorporation issued to said corporation by the State (or Territory) of Arizona on the 29th day of October 1919, be and the same is hereby revoked, cancelled and annulled.

"Done in open court this 28th day of June 1927.

"Loren Vaughn, Acting Chairman."

Later, during the trial, this same order was again introduced, but had appended to it the following certificates:

"I, M. C. Hankins, secretary of the Arizona Corporation Commission, do hereby certify that the annexed is a true and complete transcript of the Final Decree entered in the matter of Valley Fruit Farm and Garden Company, Case No. 2352-C-29898, on the 28th day of June, A. D. 1927, by the said Arizona Corporation Commission sitting as a Court of Record, as provided by law. * * *

"I, Wilson T. Wright, Chairman of the Arizona Corporation Commission, do hereby certify that the annexed attestation of the Secretary of the Arizona Corporation Commission is in due form."

The first of these certificates was dated February 26, 1934, and the last September 27, 1934.

Exhibit No. 18 was plainly inadmissible as it was not accompanied by a certificate of the "judge, chief justice or presiding magistrate that such attestation is in due form" as required by the Act of Congress relating to such matters.

"In order that a copy of a judicial record of a sister state may be admissible under the federal statute, there must be a compliance with the requirements of such statute as to the form and mode of authentication. It is usually considered that a substantial compliance is sufficient, although it has been said that `the importance of strict adherence to the act of congress on the authentication of records is quite apparent.' * * *

"All that is required is that the attestation of the record shall be in comformity with the form used in the state whence it comes, and the exclusive and conclusive evidence of this fact is the certificate of the presiding judge of that court." 22 C. J. p. 845.

Section 687, title 28, U.S.Code Ann., provides in part: "The records and judicial proceedings of the courts of any State or Territory, or of any such country, shall be proved or admitted in any other court within the United States, by the attestation of the clerk, and the seal of the court annexed, if there be a seal, together with a certificate of the judge, chief justice, or presiding magistrate, that the said attestation is in due form. And the said records and judicial proceedings, so authenticated, shall have such faith and credit given to them in every court within the United States as they have by law or usage in the courts of the State from which they are taken."

The only proof made by appellees of the authority of the Arizona Corporation Commission to act in this matter was the introduction of sections from the 1928 Revised Code of Arizona. The first relates to a voluntary dissolution of a corporation, and the next to a judicial one, both inapplicable to the present situation. The third was as follows: "Whenever any corporation has failed, for two years, to pay the registration fee and file the annual report, or either, the corporation commission shall make a finding of such fact and enter an order requiring such corporation to show cause, at a time therein named, why its right to transact business or to do business in this state, should not be declared terminated, and its articles of incorporation and its license to do business in this state revoked and annulled. The time named in the order shall not be less than twenty days, if a domestic corporation, nor less than thirty days if a foreign corporation, and not less than ninety days if an alien corporation. Such order shall be served upon the corporation...