Mendlovitz v. Samuels Shoe Co.

• Citation: 5 S.W.2d 559
• Decision Date: 28 March 1928
• Docket Number: (No. 7966.)
• Parties: MENDLOVITZ v. SAMUELS SHOE CO.
• Court: Court of Appeals of Texas

Page 559

5 S.W.2d 559

MENDLOVITZ v. SAMUELS SHOE CO.

(No. 7966.)

Court of Civil Appeals of Texas. San Antonio.

March 28, 1928.

Rehearing Denied April 25, 1928.

Appeal from Guadalupe County Court; J. B. Williams, Judge.

Action by the Samuels Shoe Company against George Mendlovitz. Judgment for plaintiff, and defendant appeals. Affirmed.

Alvin P. Mueller, of Seguin, for appellant.

Hertzberg & Kercheville, of San Antonio, for appellee.

COBBS, J.

Appellee sued appellant in the justice court of Guadalupe county to recover on a foreign judgment for $152.88, with 6 per cent. interest and for costs. This judgment was rendered by justice court of the fourth district in the city of St. Louis, Mo.

On appeal to the county court it was tried de novo. Appellant filed among other defenses a sworn answer that the judgment was procured by fraud or mistake, because he had never been properly served by citation or other process, nor did he waive service, appear, or answer to the suit, or authorize any other person to do so for him. The case was tried by the court with a jury, and the jury was instructed to return a verdict for appellee.

The evidence offered by the appellee consisted of the proceedings had in the trial court in St. Louis. The testimony shows this suit was brought on a judgment rendered by a justice court of the state of Missouri. Appellee, who was plaintiff below, in support of its cause of action introduced in evidence a properly certified copy of the transcript of the proceedings in the justice court in Missouri, which transcript contained a copy of the judgment which was sued on. This certified copy of transcript recites that personal service of citation was had upon George Mendlovitz, who was the defendant there and who is appellant here. This certified copy of transcript also shows on its face that the case was set for trial several times and each time continued to a later date by consent. The judgment itself recites that all parties appeared and announced ready for trial. Appellee also introduced in evidence a certified copy of the citation in the Missouri case on which the judgment was rendered, which certified copy of citation showed on its face that personal service of citation was had upon appellant in the state of Missouri where that proceeding was pending. Appellee also introduced in evidence the deposition of the constable who served the citation and this constable testified that he served the citation personally upon appellant in the state of Missouri, as shown by his return on the citation. Appellee also introduced in evidence the deposition of one John E. Murphy, who testified that he was an attorney, that he was employed by appellant to represent him in the suit in Missouri, in which the judgment under consideration was rendered, and that he did appear in said case and represented appellant, and that he secured several continuances of the case, and that the case was finally tried, at which time he introduced evidence on behalf of his client, but that judgment was rendered in favor of the Samuels Shoe Company, appellee herein. The only evidence introduced by appellant was his own testimony, in which he denied that he was personally served with a citation in the Missouri case, and denied that he employed an attorney to appear in the case for him, but admits that he talked the matter over with Mr. Murphy, to whom he was referred as being the collection man for the dry goods house with whom appellant had business, and that he told Mr. Murphy to get the papers which the clerk of the hotel had informed him were left at the office, and that he was informed by Mr. Murphy before he left the state that such papers consisted of a citation for appellant in the case of Samuels Shoe Company against appellant, and that he (appellant) told Mr. Murphy to see if he could adjust the matter with the Samuels Shoe Company, but denied that he authorized Mr. Murphy to appear in the case.

Both parties requested the court to instruct a verdict at the close of the testimony, which request was granted for appellee. The appellee contends that was tantamount to waiving a jury trial and submitting the issues to the court for its determination alone, citing Tiblier v. Perez (Tex. Civ. App.) 277 S. W. 189. Some of the Courts of Civil Appeals have made gestures as though disapproving the case, but suggesting that in the Tiblier Case, supra, no request was made by appellant to go to the jury on the question of fact involved after the motion was overruled. No case is found by the Supreme Court directly involving the question where both sides file a motion for an instructed verdict. The Supreme Court and Commission of Appeals attempt to distinguish between a mere "issue" and a "ground of recovery or defense."

Here the things relied on by appellant are "defenses." Since appellant did not request that issue covering same be separately submitted as a special issue covering his ground of "defense," but did request a directed verdict in his behalf, the right to have the issue found by a jury must be regarded as waived. It is therefore assumed by the instructed verdict the court found in favor of appellee both on the question of law and of fact. Tiblier v. Perez (Tex. Civ. App.) 277 S. W. 189; Bulin v. Smith (Tex. Com. App.) 1 S.W.(2d) 591; Ormsby v. Ratcliffe (Tex. Sup.) 1 S.W.(2d) 1084.

All judgments, whether foreign or domestic, are mere prima facie evidence of its truth. But...