Price v. American Surety Co. of New York

• Decision Date: 22 February 1933
• Docket Number: No. 9008.,9008.
• Citation: 59 S.W.2d 426
• Parties: PRICE v. AMERICAN SURETY CO. OF NEW YORK.
• Court: Texas Court of Appeals

59 S.W.2d 426

PRICE v. AMERICAN SURETY CO. OF NEW YORK.

No. 9008.

Court of Civil Appeals of Texas. San Antonio.

February 22, 1933.

Rehearing Granted March 29, 1933.

Motion for Rehearing Overruled April 26, 1933.

Error from District Court, Zavala County; Lee Wallace, Judge.

Suit by the American Surety Company of New York against J. L. Price. Judgment for plaintiff, and defendant brings error.

Reversed and remanded.

David E. Hume, of Eagle Pass, for plaintiff in error.

Jackson & Crawford, of Crystal City, and A. W. Penn, of Austin, for defendant in error.

MURRAY, Justice.

American Surety Company of New York, defendant in error, sued J. L. Price, plaintiff in error, alleging that it was a New York corporation with a permit to do business in Texas; that it was assignee of a judgment taken in North Dakota against J. L. Price and E. D. Smith, copartners. Such judgment did not recite that service was issued and served on J. L. Price, nor that he appeared in person or by attorney.

J. L. Price, plaintiff in error, complains in his first proposition that the surety company, defendant in error, did not prove that it had a permit to do business in Texas. This was not necessary. Article 1538 exempts corporations which are required to secure certificates of authority to do business from the commissioner of insurance from the necessity of proving its permit to do business in Texas. This question is fully discussed in the case of American Nat. Ins. Co. v. U. S. Fidelity & Guaranty Co. (Tex. Civ. App.) 24 S.W.(2d) 474. We will not repeat the discussion here.

Price contends, in his second proposition, that the surety company, having alleged that he had been duly served with process and had appeared thereto by his duly authorized attorney, having filed an answer therein, should have been required to establish same by proof, and by his third proposition he contends that, being sued upon a foreign judgment, silent as to service, he was entitled to contradict the allegations of the petition as to service and jurisdiction. We will discuss these two propositions together, as they are very closely related.

The disposition we make of the third proposition renders any discussion of the second unnecessary.

There can be no question but that Price would have had a right to raise the issue of service under a proper plea. Easley v. McClinton, 33 Tex. 288; Mallory v. Russell (Tex. Civ. App.) 242 S. W. 1112; Norwood v. Cobb, 15 Tex. 500; Redus v. Burnett, 59 Tex. 576; Chunn v. Gray, 51 Tex. 112.

The only remaining question is. Was there a proper plea? Price made a plea to the jurisdiction which was excepted to by the surety company, but we find no order sustaining or overruling this exception. It will therefore be presumed it was not presented to the court, not acted upon by the court, and thereby waived by the surety company. However, in the absence of this plea we feel that Price should have been permitted to raise this issue. The surety company in their petition alleged "that the North Dakota Court had jurisdiction over the person of the defendant * * * and that the defendant was duly served with process in said action and appeared thereto by his duly authorized attorney, having filed an answer therein." To these allegations Price entered a general denial, thus putting in issue these very questions, and certainly, if it did not become the duty of the surety company to prove these allegations, Price should have been permitted to offer evidence to disprove them. This was refused him. However, Price was called to the witness stand...