Mitchell v. San Antonio Public Service Co.

• Decision Date: 04 February 1931
• Docket Number: No. 1163-5470.,1163-5470.
• Citation: Mitchell v. San Antonio Public Service Co., 35 S.W.2d 140 (Tex. 1931)
• Parties: MITCHELL et al. v. SAN ANTONIO PUBLIC SERVICE CO.
• Court: Texas Supreme Court

35 S.W.2d 140

MITCHELL et al. v. SAN ANTONIO PUBLIC SERVICE CO.

No. 1163-5470.

Commission of Appeals of Texas, Section B.

February 4, 1931.

Error to Court of Civil Appeals of Fourth Supreme Judicial District.

Action by Anna J. Mitchell and others against the San Antonio Public Service Company. Judgment for defendant was affirmed by the Court of Civil Appeals [15 S.W.(2d) 694], and plaintiffs bring error.

Reversed and remanded.

Tyler & Hubbard, Jas. B. Hubbard, and E. C. Zellner, all of Belton, and Sehorn & Sehorn, of San Antonio, for plaintiffs in error.

Templeton, Brooks, Napier & Brown and C. R. Kennon, all of San Antonio, for defendant in error.

SHORT, P. J.

We adopt, as being substantially correct, the following statement of the nature of this case and the result of the suit made by plaintiffs in error in their application for the writ of error:

"This was a suit by Pauline Jennings against San Antonio Public Service Corporation, alleging that while a minor she was injured through the negligence of defendant in December, 1920, she then being a minor about fourteen years of age and an orphan; that she was riding in an automobile and was struck by one of defendant's cars in San Antonio and that she sustained injuries of serious and permanent nature and had never recovered therefrom. That shortly after she sustained the injuries her legal guardian, J. C. Preston, filed a suit in one of the District Courts in San Antonio in her behalf against defendant; that thereafter without the knowledge of the said J. C. Preston or his attorneys, or of the court defendant made a pretended settlement, paying to a sister of plaintiff for plaintiff the sum of $750.00 and that the original suit was dismissed for want of prosecution, and that plaintiff, as soon as she became of age, repudiated said pretended settlement, which was grossly inadequate, and procured by fraud, and asked for a judgment in the sum of $50,000.00.

"Defendant answered by general demurrer, and set up a judgment of the Justice Court in St. Louis, Missouri, wherein plaintiff's sister appeared as next friend and a judgment was entered for $50.00, pleading said judgment as res adjudicata and setting up contributory negligence of plaintiff.

"Plaintiff filed her supplemental petition in which she alleged that the pretended settlement and judgment of the Justice Court in St. Louis was procured by fraud and were of no force and effect, and were consummated without the knowledge of her legal guardian and were grossly inadequate and constituted a fraud upon the District Court in Bexar County where the original suit filed by her guardian was pending, and that no suit could be maintained in any justice court in Missouri, and that no one other than her legal guardian had any legal authority to submit to the jurisdiction of any other court, and that said court had no jurisdiction over the parties or the subject matter involved, and prayed as in her original petition.

"Defendant answered in its first supplemental answer by demurrers and exceptions, all of which were overruled, by the court, except one addressed to plaintiff's prayer for damages accruing subsequent to the St. Louis judgment.

"The cause was tried to a jury and at the conclusion of all the testimony, the court instructed a verdict for defendant, which was excepted to by plaintiff. And on such instructed verdict the court entered a judgment in favor of defendant.

"Plaintiff seasonably filed motions for new trial which were overruled by the court, and plaintiff duly excepted and gave notice of appeal.

"Shortly after the judgment was entered, plaintiff died, her death was suggested and her only surviving heir at law, Anna Jennings Mitchell, joined pro forma by her husband, were substituted as parties plaintiff.

"Plaintiffs in error took the cause by writ of error to the Court of Civil Appeals for the Fourth Supreme Judicial District, which affirmed the judgment of the trial court, and overruled plaintiff in error's motion for rehearing."

One of the two assignments of error presented in the application for the writ of error is to the effect that the Court of Civil Appeals erred in sustaining the action of the trial court in giving a peremptory instruction in favor of the defendant in error to the jury.

The record shows without dispute the Pauline Jennings was a minor 14 years old at the time she was injured; that she was an orphan living with her sister, who was not then quite 21 years old; that J. C. Preston was the legal guardian of both, and that he filed in one of the district courts of Bexar county a case against defendant in error for damages on behalf of his ward, Pauline Jennings, because of said injuries which were inflicted in December, 1920; that this suit was pending in said court until January 30, 1922; that while this suit was pending in the district court of Bexar county, and on the 1st day of June, 1921, there was filed before H. W. McChesney, justice of the peace for the Fourth district of St. Louis, in the state of Missouri, a suit by Mrs. Anna Mitchell, the next friend of Pauline Jennings, for damages in the sum of $50 against the defendant in error; that on the same day the suit was filed the appointment of next friend was approved by the justice of the peace, issuances of summons waived, and all parties agreed to an immediate trial; that on the same day a judgment was rendered in favor of plaintiffs and against the defendant in the sum of $50, with cost of suit and awarding execution; that on the same day the judgment was marked "satisfied," signed by the next friend, and by the minor; that the purpose of having this brought and judgment rendered in the justice court in the city of St. Louis in the state of Missouri was to avoid being compelled to try the case brought by the guardian in the district court of Bexar county; that the justice court in which the $50 damage suit was brought and in which the judgment was rendered had jurisdiction of the sum sued for, and the judgment recites that all parties appeared, announced ready for trial, and the justice of the peace heard the evidence submitted; that this judgment was based upon the same transaction upon which the suit pending in the district court of Bexar county was based, the minor being represented in the one case by a next friend, and in the other by a duly qualified guardian; that the proceedings culminating in the rendition of the judgment, in favor of the minor, for $50 against the defendant in error, were conducted by agents of the defendant in error who paid all the expenses thereof, which proceedings were without the knowledge of the guardian or of those representing him in the suit pending in the district court of Bexar county; that as soon as the minor, Pauline Jennings, became of age she repudiated the settlement evidenced by the $50 judgment above mentioned, and filed this case, the previous one filed by her guardian having been dismissed on or about January 30, 1922, this dismissal also being without the knowledge or consent of the guardian or those representing him. The record also discloses the fact to be that under the laws of the state of Missouri no direct attack upon this judgment could successfully be made by the minor or by her heirs or legal representatives, after her death, against the defendant in error, which was the defendant in that suit, except on account of fraud, and that service by publication could not be had under the statutes of the state of Missouri. It is also apparent from the record that the defendant in error, being a domestic corporation having no permit to do business in the state of Missouri, could not be forced to answer a suit to set aside the judgment for $50 rendered as aforesaid, in consequence of which, if said judgment is conclusive of the rights of the parties, the defendant in error could not be held responsible for any damages to the minor plaintiff or to her heirs or legal representatives beyond the $50, shown by the testimony to have been paid at the time the judgment was rendered, however fraudulent the judgment may be in itself, or whatever may have been the original legal rights of the minor plaintiff to recover a larger sum of damages than the testimony shows was paid her for the injuries inflicted.

It is the contention of the defendant in error, a domestic corporation having the authority to do business alone in the state of Texas, that under the facts related the judgment against it in favor of the minor for $50 rendered in the justice court in the city of St. Louis in the state of Missouri, constitutes a conclusive bar to the demand asserted by Pauline Jennings in this suit, since it is now the settled rule of law that judgments rendered by courts of sister states are entitled to the same recognition accorded the judgments of domestic courts. 34 C. J. 1125, 1126; Norwood v. Cobb, 24 Tex. 551; Hall v. Mackey, 78 Tex. 248, 14 S. W. 615.

It is a settled rule in Texas that a judgment of a court of competent jurisdiction cannot be collaterally impeached unless the record affirmatively shows the want of jurisdiction. Williams v. Haynes, 77 Tex. 283, 13 S. W. 1029, 19 Am. St. Rep. 752; Holmes v. Buckner, 67 Tex. 107, 2 S. W. 452. A litigant in questioning the jurisdiction of the court in which judgment has been rendered, to which he is a party, can only successfully do so by showing that the proceedings and the judgment resulting from the proceedings are void, and therefore the supposed record is not in truth a record. If a court has jurisdiction of the person of the defendant, and of the subject-matter of the...