Roath v. Uniroyal, Inc., 8255

• Court: Court of Appeals of Texas. Court of Civil Appeals of Texas
• Citation: 582 S.W.2d 185
• Docket Number: No. 8255,8255
• Parties: Charles A. ROATH, Individually and D/B/A Chuck's T.B.A. Supply, Appellants, v. UNIROYAL, INC., Appellee.
• Decision Date: 19 April 1979

Page 185

582 S.W.2d 185 Charles A. ROATH, Individually and D/B/A Chuck's T.B.A.
Supply, Appellants,
v.
UNIROYAL, INC., Appellee. No. 8255. Court of Civil Appeals of Texas, Beaumont. April 19, 1979.

Page 186

Alan McNeill, Beaumont, for appellants.

Jon D. Totz, Houston, for appellee.

KEITH, Justice.

Defendant below appeals from a judgment that granted full faith and credit to a Kansas judgment entered against defendant.

On September 23, 1963, United States Rubber Company, now Uniroyal, Inc., obtained a default judgment in the District Court of Johnson County, Kansas, against defendant. At that time defendant was a Kansas resident and was personally served. This judgment was revived on January 12, 1967, by means of a garnishment proceeding, for a five-year period. The judgment became dormant after January 12, 1972. However, on August 9, 1972, plaintiff filed a motion to revive the dormant judgment under Kansas statutes, and a citation by publication upon the oath of plaintiff's attorney was made out, filed, and published. On June 4, 1973, the Kansas court revived the judgment by a journal entry.

In August 1971, defendant moved to Texas and was residing there when the revivor suit was filed and heard. In 1975, plaintiff filed this cause of action, seeking to enforce the Kansas judgment, and defendant was personally served at 109 Berkshire Lane, Beaumont, Texas, where he had resided since moving to Texas. Defendant first learned of the Kansas court's motion to revive, the citation by publication, and the journal entry when he received this citation. In a non-jury trial, the court granted a judgment in favor of plaintiff, finding that the revived judgment was entitled to full faith and credit in the courts of Texas.

Texas courts are required to give full faith and credit to valid final judgments of sister states. U.S.Const. art. IV, § 1. However, a Texas court may examine the facts to determine whether one sister state's court had jurisdiction to enter the decree of which full faith and credit is sought. McElreath v. McElreath, 162 Tex. 190, 345 S.W.2d 722, 744 (1961); Chunn v. Gray, 51 Tex. 112, 114 (1879); Layton v. Layton, 538 S.W.2d 642, 646 (Tex.Civ.App. San Antonio 1976, writ ref'd n. r. e.); Gunther v. Gunther, 478 S.W.2d 821, 827 (Tex.Civ.App. Houston (14th Dist.) 1972, writ ref'd n. r. e.). See generally Hodges, "Collateral Attacks on Judgments," 41 Texas L.Rev. 499, 540-41 (1963). Defendant now complains that the Kansas court did not obtain in personam jurisdiction authorizing the revival of the dormant judgment.

Page 187

Under Kansas law (Kan.Stat.Ann. § 60-2404 ), a dormant judgment may be revived as follows:

". . . if, within two (2) years of the date on which such judgment became dormant, the holder thereof files a motion for revivor and a request for the immediate issuance of an execution thereon if such motion is granted. Notice of the filing of the motion shall be given as for a summons under article 3 of this chapter, and on the hearing thereof the court shall enter an order of revivor unless good cause to the contrary be shown, and thereupon the execution shall issue forthwith."

Notice may be given by publication. Kan.Stat.Ann. § 60-307. Section 60-307(d) requires that the party seeking service by publication or his attorney file an affidavit stating, inter alia, the residences of all named defendants to be served and the names of all defendants whose residences are unknown after reasonable effort to ascertain them, that the party seeking service by publication is unable to procure personal service of summons on such defendants in this state, and that the case is one of those mentioned in S 60-307(a). ^* The statute even provides a form for the affidavit to be filed. Plaintiff's attorney filed an affidavit that was in compliance with this form. Kan.Stat.Ann. § 60-307(d)(5).

Defendant contends that the...