Sonora v. Morales

• Decision Date: 04 January 1922
• Docket Number: Civil 1868
• Citation: 23 Ariz. 248,203 P. 328
• Parties: BANCO DE SONORA, a Mexican Corporation, Appellant, v. MARTIN MORALES, Jr., Appellee
• Court: Arizona Supreme Court

203 P. 328

23 Ariz. 248

BANCO DE SONORA, a Mexican Corporation, Appellant, v. MARTIN MORALES, Jr., Appellee

Civil No. 1868

Supreme Court of Arizona

January 4, 1922

APPEAL from a judgment of the Superior Court of the County of Santa Cruz. W. A. O'Connor, Judge. Affirmed.

Messrs Duffy & Purdum and Messrs. Armstrong, Lewis & Kramer, for Appellant.

Mr Frank J. Barry, and Messrs. Winter, McBroom & Scott, for Appellee.

OPINION

FLANIGAN, J.

The appellee Martin Morales, Jr., brought suit in the court below against Banco de Sonora, a Mexican corporation, appellant herein, to recover the sum of $5,210.50, with interest at six per cent from December 30, 1918, upon a judgment rendered against the bank in plaintiff's favor on the date mentioned, by the district court, sixty-fifth judicial district of El Paso county, Texas. To this complaint the bank answered by plea alleging that the judgment of the Texas court was void for lack of jurisdiction over the person of appellant. Thereupon an amended complaint was filed, setting forth an additional and second cause of action for recovery of the items of indebtedness upon which the judgment had been rendered, being: First, a certificate of deposit of date February 8, 1916, issued by the bank at El Paso, Texas, in the Spanish language, which translated into English reads "Certificate of Deposit No. 155.

"We hereby certify that Mr. Martin Morales, Jr., has deposited with us the amount of $5,948.25 (five thousand nine hundred forty-eight pesos and twenty-five cents), for a fixed term of one year reckoned from to-morrow, and consequently we will pay him the amount aforesaid, against delivery hereof, on the 8th day of February, 1917, with the understanding that this certificate bears no interest.

"El Paso, Texas, February 8, 1916.

"BANCO DE SONORA, CHIHUAHUA BRANCH,

"OTON SARTORIUS, Counsel.

"L. ESCOBAR, Accountant."

-- and, second, an alleged indebtedness of 735.36 Mexican pesos on checking account with the bank. The judgment of the Texas court was for the equivalent in American money of said sums at the time of the rendition of the judgment, and the court below was asked to render judgment on the second cause of action upon a similar calculation of the exchange values then existing.

The court below found all the facts alleged concerning the indebtedness in favor of plaintiff, but rendered judgment for the debt due on the Texas judgment only, holding it to be valid and enforceable in this state in personam against appellant. It would therefore appear that the second cause of action and all defenses made thereto had been eliminated from the case, and should require no further consideration. This we think is true, but because of the attack made upon the complaint, proceedings, and judgment upon the grounds that the two causes of action were improperly included in one complaint, and because the court did not compel an election by plaintiff between these causes of action, we later set forth our precise holding as to such contentions and the reasons for such holding. In his petition filed in the Texas court the plaintiff alleged, in substance, that he was a resident of El Paso county, Texas; that defendant was a banking corporation, formerly existing and doing business under the laws of the state of Chihuahua, in the republic of Mexico, "but is at present located and doing a banking business in the city of El Paso, county of El Paso, and state of Texas; that Oton Sartorius, who resides in El Paso county, Texas, is the local agent representing said defendant in El Paso county, Texas, on whom process may be served"; that the bank was indebted to him upon the items referred to, and prayed for judgment accordingly. Upon the petition so filed a citation was issued out of said court on October 11, 1918, and served, as appears by the sheriff's return, on the same day, on the Banco de Sonora --

"by delivering [it] to Oton Sartorius, 10/11/1918, 12:30 P.M., 402 Mills Building, El Paso, Texas. Is alleged to be local representative of said corporation in El Paso county, Texas."

The judgment was by default for want of answer, and was rendered on December 30, 1918, and after finding that --

"The defendant, though duly cited in the manner and for the length of time required by law, having failed to appear and answer herein, but wholly made default, no jury was demanded, but said cause was submitted to the court, and the court, having heard the pleadings and evidence and being duly advised in the premises," adjudged that the plaintiff do have and recover from the defendant the sum of $5,210.50 lawful money of the United States of America, with interest at six per cent from the date of the judgment.

It is not contended that the Texas court was without jurisdiction over the subject matter of the action, but it is asserted that neither the record of the proceedings nor the facts in evidence establish that at the time of the service of the citation the bank was doing business in the state, or that Sartorius was the local representative or agent of the bank upon whom process could be served, so as to subject the bank personally to the jurisdiction of the Texas court. In that connection the answer alleges that the bank at all times was a citizen of the republic of Mexico, and was only temporarily in the state of Texas; that prior to 1913 it had its banking offices and conducted a banking business in Mexico; that in 1913, because of a revolution and condition of civil war in that country, it closed its banking offices there, and fled therefrom, and brought into the states of Texas and Arizona a considerable part of the assets of the company, including its records and papers; that later it returned to Mexico, and at the time suit was brought in the court below had ceased for several years to maintain any agent or representative in Texas, and that any of its officers and directors now in the United States were merely temporarily sojourning here; "that for some time the said defendant corporation conducted a temporary office in Arizona, and had one of its agents in El Paso, Texas"; that on February 8, 1915, the bank executed to plaintiff at El Paso, Texas, a certificate of deposit for 5,775 pesos Mexican money, signed for it by Sartorius, counsel, and Escobar, accountant, and payable one year after date; that this instrument evidenced an indebtedness it incurred to plaintiff in Chihuahua, Mexico, and was renewed by the certificate sued upon (hereinbefore set forth). It is then averred that none of its officers or agents were ever served with process in the Texas suit, and that no service was ever made upon it therein; that it never voluntarily appeared in the cause, and at the time of the suit it was not doing business in the state of Texas. The questions which arise concerning the validity of the Texas judgment are: First, is the judgment valid on its face; and, if it is, then, second, was the judgment successfully impeached under the plea of its invalidity in fact, for lack of jurisdiction?

First. Is the judgment valid on its face? The record of the proceedings was proved and admitted in the court below, in conformity with the provisions of United States Revised Statutes, section 905, originally act of May 26, 1790 (1 Stat. 122), which reads:

"That the records and judicial proceedings of the courts of any state, shall be proved or admitted in any other court within the United States, by the attestation of the clerk, and the seal of the court annexed, if there be a seal, together with a certificate of the judge, Chief Justice, or presiding magistrate, as the case may be, that the said attestation is in due form. And the said records and judicial proceedings authenticated as aforesaid, shall have such faith and credit given to them in every court within the United States, as they have by law or usage in the courts of the state from whence the said records are or shall be taken."

-- enacted by Congress pursuant to the authority given by section 1, article 4, Constitution of the United States, and to effectuate the purpose of the provision thereof that --

"Full faith and credit shall be given in each state to the public acts, records, and judicial proceedings of every other state."

It is not denied that the district court of El Paso county, Texas, which rendered the judgment, is a court of general jurisdiction and of record.

And "when a court of record in one of the states has assumed to exercise jurisdiction over a subject matter in controversy between parties resident in that state, and has pronounced judgment, and the record of such judgment, duly authenticated according to the act of Congress, is made the basis of an action in another state, the legal presumption, in the absence of proof to the contrary, and although the record may be silent or ambiguous on the point, is in favor of the jurisdiction of the court rendering the judgment." Section 896, Black on Judgments (2d ed.).

See, also, Mills & Co. v. Stewart, 12 Ala. 90; Nunn v. Sturges, 22 Ark. 389; Bailey v. Martin, 119 Ind. 103, 21 N.E. 346; American Mutual Life Ins. Co. v. Mason, 159 Ind. 15, 64 N.E. 525; Westervelt v. Jones, 5 Kan. App. 35, 47 P. 322; Coskery v. Wood, 32 S.C. 416, 30 S.E. 475; Cuykendall v. Doe, 129 Iowa 453, 113 Am. St. Rep. 472, 3 L.R.A. (N.S.) 449, 105 N.W. 698; Carpenter v. Ritchie, 2 Wash. 512, 26 Am. St. Rep. 877, 28 P. 380; McMahon v. Eagle Life Assn., 169 Mass. 539, 61 Am. St. Rep. 306, 48 N.E. 339; State v. Weber, 96 Minn. 422, 113 Am. St. Rep. 630, 105 N.W. 490; Van Norman v. Gordon, 172 Mass. 576, 70 Am. St. Rep. 304, 44 L.R.A. 840, 53 N.E. 267.

But, as appellant contends, it is likewise well established that the courts of another state will not receive, as evidence of a foreign...