Ryan v. City Nat. Bank & Trust Co. of Oklahoma City, Okl., 2505.

• Citation: 186 S.W.2d 747
• Decision Date: 23 March 1945
• Docket Number: No. 2505.,2505.
• Parties: RYAN v. CITY NAT. BANK & TRUST CO. OF OKLAHOMA CITY, OKL.
• Court: Court of Appeals of Texas

186 S.W.2d 747

RYAN v. CITY NAT. BANK & TRUST CO. OF OKLAHOMA CITY, OKL.

No. 2505.

Court of Civil Appeals of Texas. Eastland.

March 23, 1945.

Appeal from Distict Court, Taylor County; M. S. Long, Judge.

Action by the City National Bank & Trust Company of Oklahoma City, Okl., against J. T. Ryan on an Oklahoma judgment. Judgment for plaintiff, and defendant appeals.

Reformed, and affirmed as reformed.

Smith & Eplen, of Abilene, for appellant.

R. W. Haynie, of Abilene, for appellee.

GRISSOM, Justice.

City National Bank & Trust Company of Oklahoma City, Oklahoma, recovered judgment in the District Court of Oklahoma County, Oklahoma, against J. T. Ryan on February 9, 1943, for $1,064.24 plus interest and costs. That judgment recites that said defendant appeared in person and by his attorney of record; that a jury was waived; that written stipulations of the parties were offered in evidence; and that the defendant introduced evidence. The judgment concludes "* * * to all of which judgment of the court defendant excepts, and exceptions are allowed. It is further ordered that the costs of this action be taxed against the defendant, to which order of the court the defendant excepts, and exceptions are allowed." Said judgment was marked "OK" by the attorney for defendant. On August 20, 1943, said Bank instituted a suit against said defendant Ryan on said Oklahoma judgment in a District Court of Taylor County, Texas. In a trial to the court, judgment was rendered for the Bank against Ryan for $1,227.83, recited in the judgment to be "the principal amount of its debt, interest to date of this judgment, and court costs, together with six per cent (6%) interest thereon from this date until paid, together with its costs herein." The defendant Ryan has appealed. The parties will be designated as they appeared in the trial court.

Defendant presents four points, as follows: The court erred (1) in admitting the Oklahoma judgment in evidence, because said judgment shows on its face that it is not a final judgment; (2) because it was not shown that the defendant in the Oklahoma and Texas judgments was the same person; (3) that the court erred in admitting in evidence the certificate of the clerk of the Oklahoma court showing the amount of costs incurred in said court, because such certificate is not a judgment nor part of a judgment and is not entitled to the same faith and credit accorded a judgment of a sister state; and (4) that there was no evidence of probative force to support said judgment.

Appellant's contention that the Oklahoma judgment shows on its face that it is not a final judgment, is based upon the heretofore quoted concluding portion of the judgment to the effect that defendant excepted and exceptions were allowed. We do not think that such recitals show the judgment was not final. If the action reflected is sufficient to constitute an appeal under the laws of Oklahoma, that fact is not shown by the evidence. In the absence of proof of what is necessary to perfect an appeal under the laws of Oklahoma, we presume that said law is the same as the Texas law. Van Natta v. Van Natta, Tex.Civ. App., 200 S.W. 907 (writ ref.); 26 Tex.Jur. 440; 25 Tex.Jur. 366; Commonwealth of Mass. v. Davis, Tex.Sup., 168 S.W.2d 216; Lubell v. Sutton, Tex.Civ.App., 164 S.W.2d 41 (writ ref.). In Texas the fact that the judgment recited that the defendant excepted to the judgment would not evidence lack of finality. Notice of appeal and the filing and approval of an appeal bond, or an affidavit in lieu thereof, are prerequisites of an appeal. Rules of Civil Procedure, rules 353, 354 and 356. See also 31 Am.Jur. 350, 353.

The contention that it was not shown that the defendant in the Oklahoma judgment and in the Texas case were the same person is overruled. A person with the same name as the defendant in the Oklahoma judgment filed an answer in the Texas case that shows said parties are identical. Furthermore, "the identity of the person sued with the one against whom the judgment was recovered may be presumed if the names given in full are the same." 34 C.J. 1120, sec. 1594.

Appellant's contention, asserted in his fourth point, that there is no evidence of probative force to support the judgment appealed from is overruled. "The transcript of the judgment sued on is prima facie evidence of the recovery of the judgment, and, in...