Russell v. Butler

• Decision Date: 22 October 1898
• Citation: 47 S.W. 406
• Parties: RUSSELL v. BUTLER.
• Court: Texas Court of Appeals

47 S.W. 406

RUSSELL v. BUTLER.

Court of Civil Appeals of Texas.

October 22, 1898.

Appeal from Cooke county court; J. P. Hall, Judge.

Action by William M. Butler against George H. Russell on a foreign judgment. Judgment was for plaintiff, and defendant appeals. Affirmed.

J. T. Adams, for appellant. Robt. E. Cofer, for appellee.

STEPHENS, J.

The judgment appealed from in this case was obtained perforce of a judgment already had by appellee against appellant before a justice of the peace in Lincoln county, Tenn., appellee being a citizen of Tennessee and appellant a citizen of Texas. The conclusive effect of the Tennessee judgment was denied upon several grounds, but principally because it was rendered upon the same day that the summons purported to have been issued and served upon appellant, who was then on a visit to Tennessee; and upon the further ground that no process had in fact ever been served on him, the answer (which was sworn to) denying this fact, and averring that the judgment had been fraudulently obtained.

It seems clear, from the laws of Tennessee read in evidence on the trial of this cause, that a justice of the peace in that state had the power, when the judgment in question was rendered, to try the case and enter judgment, there being personal service, as in this instance, on the very day the summons was issued and served. These laws contain provisions for fixing the hour of trial, and for a continuance of the case if the defendant is not ready for trial. The procedure is not such as to deprive him of his day in court. The judgment was not, therefore, void upon this ground.

Upon the issue of fact raised, as to whether or not the process was really served, the evidence was conflicting. In submitting this issue the court gave the following charge, of which counsel for appellant vehemently complains "The plaintiff has introduced in evidence a copy of said judgment, with the return of the officer attached thereto. Therefore the burden of proof is on the defendant to show, by a preponderance of evidence, that said return was not true." That this charge placed the burden of proof where the law places it seems quite clear. The matter set up, and which appellant sought to establish by proof, was in avoidance of the Tennessee judgment. It was essentially matter of defense. As was said by our supreme court in Redus v. Burnett, 59 Tex. 576: "It is well settled as the law of this state that, where an action in our courts is based on a...