Porcheler v. Bronson

• Decision Date: 01 January 1879
• Citation: 50 Tex. 555
• Parties: D. PORCHELER v. JOHN M. BRONSON, ADM'R OF R. W. BARROW.
• Court: Texas Supreme Court

50 Tex. 555

D. PORCHELER

v.JOHN M. BRONSON, ADM'R OF R. W. BARROW.

Supreme Court of Texas.

1879.

APPEAL from Victoria. Tried below before the Hon. H. Clay Pleasants.

D. Porcheler sued appellee upon a judgment alleged to have been rendered in the Fifth District Court of the parish of Orleans and State of Louisiana, in favor of D. Porcheler and against R. R. Barrow, stating its amount, &c. He alleged that it had never been paid and remained in full force and effect, not reversed, satisfied, or otherwise vacated. He attached to his petition a copy of the judgment and alleged presentation thereof to Bronson, administrator, and its rejection, and prayed for judgment.

Bronson, administrator, demurred generally and specially, alleging for special demurrer that the judgment sued on was not a judgment against Barrow personally, but a judgment against him in a representative capacity alone, and for answer pleaded payment.

This special exception was sustained by the court, and, plaintiff declining to amend, there was final judgment against him, that the case be dismissed and that he pay all costs. From this judgment the plaintiff appealed. The additional facts are given fully in the brief of appellant, which is full and accurate in its statement.

A. B. Peticolas, for appellant.

I. When a judgment of another State of the United States is sued on, and it appears from the pleadings that the judgment where rendered is claimed to be a valid judgment against the defendant therein personally, whether it is such a judgment or not, depends upon the question what the laws of that State are, which question is a question of fact, to be proved and found as other facts in the case, and such a judgment cannot by the court be pronounced merely a judgment against defendant in a fiduciary capacity, on demurrer, and as a pure question of law.

The petition alleges that on the 10th of March, 1873, at the March Term of the Fifth District Court of the parish of Orleans and State of Louisiana, the same being a court of record having jurisdiction to hear and determine, the judgment sued on was rendered.

Attached to the petition and made a part of it, is an authenticated copy of the judgment sued on, the transcript of which embraces the petition, the citation, the answer, and the judgment rendered in the said Louisiana court. Petition further alleges that the judgment thereto attached remains in full force and effect, not reversed, not satisfied, nor otherwise vacated; avers presentation to and rejection by the administrator Bronson, and prays for judgment. The petition in the original suit in Louisiana is signed by Hornor & Benedict, attorneys, and declares upon a promissory note drawn by Barrow to his own order and by him indorsed, dated at New Orleans November 8, 1871, for $2,500.

It alleges that to secure the payment of the note, costs, and attorney's fees, Barrow individually, as the testamentary executor of his deceased wife and as the natural tutor of his minor children, executed a mortgage on certain real estate described, and prays that Barrow individually, as the executor of his deceased wife and as natural tutor of his minor children, may be cited, and that after due proceedings petitioner have judgment recognizing his mortgage on the property described for $2,500, interest, costs, and attorney's fees, and that the mortgaged property be sold.

Citation issued exactly as prayed for. Sheriff's return shows service on Barrow individually, as executor of his wife, &c. Barrow's answer sets up, (1) that Barrow is not the legal owner of the note; (2) that the mortgaged property belongs to minors; (3) that the mortgage and note were signed by him only in his individual capacity.

The judgment rendered March 10, 1873, adjudges that there be judgment in favor of plaintiff Porcheler against R. R. Barrow individually, as the testamentary executor of his deceased wife, Voluminia W. Barrow, and as the natural tutor of his minor children, Voluminia R. Barrow and Robert R. Barrow, recognizing plaintiff's special mortgage on the property described in his petition for the sum of $2,500 and interest, for costs and attorney's fees, and ordering sale of the property.

Appellee's special exception is “that the judgment is not against Barrow personally, but in his representative capacity alone.”

The judgment of the District Court of Victoria county was that the defendant's demurrers be sustained; that the case be dismissed, and that plaintiff pay costs.

The bill of exceptions of plaintiff shows that only the special exception of the plaintiff was sustained, and that was sustained because, in the opinion of the court, “said judgment was not a judgment against Barrow personally”; and to this ruling plaintiff Porcheler excepted on two grounds--

1st. Because the judgment is one of the State of Louisiana, and is alleged in the petition to be a valid judgment against Barrow personally, and whether it is such a judgment or not, is not a pure question of law, but a mixed question of law and fact, and depends upon the laws of Louisiana, to be hereafter offered in evidence to establish the validity of the judgment against Barrow personally; and the court could not, in advance of said proof being made, determine whether it was valid or not, as a personal judgment against Barrow.

2d. Because it was entitled to the same faith and credit, validity and efficacy, in Texas as in Louisiana; and what its validity and efficacy there were, depended upon the law and custom of Louisiana, which was a question of fact not to be determined on exception. (Paschal's Dig., art. 3709; Crosby v. Huston, 1 Tex., 231;Bradshaw v. Mayfield, 18 Tex., 28; 1 Greenl. Ev., secs. 487, 488; Clemmer v. Cooper, 24 Iowa, 185; Grover v. Grover, 30 Mo., 400; Hall v. Williams, 10 Maine, (1 Fairf.,) 278; Holton v. Gleason, 26 N. H., 501.)

II. The judgment sued on is sufficient to authorize a judgment thereon against Barrows, administrator, here; for when tested by the laws of the State of Texas it is a personal judgment.

The second ground of plaintiff's exception to the ruling and judgment of the court below on the demurrer is, because the judgment, [sued on] properly construed, was a personal judgment against Barrow, as shown by the whole transcript of the record, the words used being simply descriptio personœ. (Gregory v. Leigh, 33 Tex., 813;Stevens v. Morris, 35 Tex., 709;Hall v. Pearman, 20 Tex., 170;Claiborne v. Yoeman, 15 Tex., 44;Gayle v. Ennis, 1 Tex., 184.)

Lackey & Stayton, for appellee.

I. When a suit is brought upon a foreign judgment, if there be no ambiguity in it, it is the duty and the right of the court trying the cause to determine the legal effect of such judgment upon the transcript, without resorting to proof aliunde. (Fisk v. Miller, 20 Tex., 581;Beatty v. Gates, 4 Ind., 155; 1 Greenl., sec. 86; Kimball v. Merrick, 20 Ark., 13; Elliott v. Peirsol, 1 Pet., 340;Gay v. Welles, 7 Pick., 219;Green v. Clark, 5 Denio, 505.)

II. If there be anything peculiar in the laws of the State of Louisiana, or in the customs of procedure in the courts of that State, by which the judgment sued upon became a personal judgment against Robert...