Roberts v. Hodges, 7596

Decision Date21 March 1966
Docket NumberNo. 7596,7596
Citation401 S.W.2d 332
CourtTexas Court of Appeals
PartiesLloyd W. ROBERTS et ux., Appellants, v. C. F. HODGES, Appellee. . Amarillo

Linn & Helms, Spearman, Richard N. Countiss, Spearman, of counsel, for appellants.

Lemon, Close & Atkinson, Perryton, for appellee.

DENTON, Chief Justice.

This is an appeal from a judgment rendered in favor of C. F. Hodges, appellee against appellants, Lloyd W. Roberts and wife, Rose M. Roberts, by the District Court of Hansford County, Texas, in appellee's suit on an Oklahoma judgment. The Texas court, without a jury, rendered judgment for appellee on the Oklahoma judgment and appellants have timely perfected this appeal.

On June 26, 1959, appellants executed a renewal note in Guymon, Oklahoma, in the principal sum of $2667.14, payable to the order of appellee at the First National Bank of Texhoma, Oklahoma on November 1, 1959. The note was not paid and appellee instituted suit against appellants in the district court in Texas County, Oklahoma on May 11, 1962. On December 19, 1963 appellee filed an amended petition requesting out-of-state service be had on appellants in accordance with certain named Oklahoma statutes The district judge issued such order and appellants were served with citation on December 21, 1963 in Hansford County, Texas by a deputy sheriff of that county. On August 24, 1964 the Oklahoma district court rendered a default judgment against appellants on the note, interest, and attorneys' fees. The instant suit was subsequently filed in the district court of Hansford County, Texas. Appellee's proof included authenticated copies of the Oklahoma court's default judgment and a citation and return showing personal service upon appellants in Hansford County, Texas. The Oklahoma judgment recited appellants: 'were duly served with summons hereof, outside this state under the provisions of 12 O .S.Supp.1963, Section 187, more than twenty days prior to this date and has failed to answer or otherwise plead herein and is in default'. The trial court here found, among other things, service of process upon appellants was in full compliance with the Oklahoma statute covering service upon the non-resident defendants and that no amount of the Oklahoma judgment had been paid.

The general rule is that in order that a judgment of another state may come within the full faith and credit clause of the Constitution of the United States, it must be a final, valid, subsisting judgment not vacated or set aside in the state of rendition; and it must be conclusive on the merits. 34 Tex.Jur.2d 384, Section 368, and cases cited therein. The Oklahoma judgment appears on its face to be a valid, final and subsisting judgment rendered by a court of general jurisdiction. The introduction of an authenticated copy of that judgment made a prima facie case for appellee unless it was successfully attacked or shown the court lacked jurisdiction. Garman v. Reynolds (Tex.Civ.App.) 284 S.W.2d 262, (Err. Ref.). Ryan v. City National Bank and Trust Company of Oklahoma City, Oklahoma (Tex.Civ.App.) 186 S.W.2d 747. Gard v. Gard (Tex.Civ.App.) 244 S.W.2d 884. Appellants then had the burden to establish that the judgment was not valid or subsisting or that the court did not have jurisdiction to render the judgment. Mendlovitz v. Samuels Shoe Company (Tex.Civ.App.) 5 S.W.2d 559. Garman v. Reynolds, supra. The presumption of validity may be overcome by a showing of lack of proper service or appearance. Williams v. State of North Carolina, 325 U.S. 226, 65 S.Ct. 1092, 89 L.Ed. 1577.

Appellee's pleadings alleged his cause of action on the promissory note was on a contract executed in the State of Oklahoma and on its face it was to be performed in that state; and that it was a class of case under which personal service of summons may be obtained out of state against non-residents under a cited Oklahoma statute. As previously stated, the judgment recited appellants 'were duly served with summons herein outside this state under the provisions of 12 O.S.Supp.1963, Section 187 more than twenty days prior to this date and has failed to answer or otherwise plead herein and is in default'. The statute itself was not introduced into evidence. Appellants contend the Oklahoma statute relative to service must be plead and proved, and in the absence of such pleadings and proof to the contrary the Oklahoma law must be presumed to be identical to the law of Texas. This contention has been rejected. The Waco Court of Civil Appeals in Dowden v. Fischer (Tex.Civ.App.) 338 S.W.2d 534, decided this question contrary to appellants' contention here. The court held:

'The presumed validity of a sister state judgment cannot be overthrown by a presumption. 'The burden of undermining the verity which the Nevada decrees import rests heavily upon the assailant.' Williams v. State of North Carolina, supra (325 U.S. 226, 65 S.Ct. 1097). If effect were to be given to the rule contended for, every sister state judgment would be vulnerable to a mere showing that the notice or service differed from that required by Texas law.'

In Liddel v. Blevins (Tex.Civ.App.) 244 S.W.2d 335 (Ref. N.R.E.) the court rejected the same contention advanced by appellants and quoted with approval from Taxes Law of Evidence, page 102, McCormick & Ray:

'All acts are presumed to have been rightly done until the contrary appears. This includes every judgment and order entered at any stage of the proceeding. Thus, it is said that every reasonable presumption will be indulged to sustain a judgment and nothing will be presumed against it. All prior requisites to the rendition of a judgment will be presumed to have been fulfilled and the recitals in a judgment or order will be presumed to state the truth.'

In McKanna v. Edgar, 388 S.W.2d 927, the Supreme Court, in discussing an attack upon service of process to support a default judgment of a sister state used the following language:

'While ordinarily presumptions are made in support of a judgment (including presumptions of due service of citation when the judgment so recites), no such presumptions are made in a direct attack upon a default judgment.'

Here appellants present a collateral attack as distinguished from a direct attack.

Appellee proved a prima facie case by introducing the authenticated copy of the Oklahoma...

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  • Andre v. Morrow
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    ...judgment, which is (C) rendered on the merits of the case. Simonsen v. Simonsen, 414 S.W.2d 54 (Tex.Civ.App.1967); Roberts v. Hodges, 401 S.W.2d 332 (Tex.Civ.App.1966). A(1). For purposes of full faith and credit, a valid judgment itself consists of several factors. First, a valid judgment ......
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