St. Louis Expanded Metal Fireproofing Co. v. Beilharz

• Decision Date: 17 June 1905
• Citation: 88 S.W. 512
• Parties: ST. LOUIS EXPANDED METAL FIREPROOFING CO. v. BEILHARZ et al.
• Court: Texas Court of Appeals

Page 512

88 S.W. 512

ST. LOUIS EXPANDED METAL FIREPROOFING CO. v. BEILHARZ et al.

Court of Civil Appeals of Texas.

June 17, 1905.

Appeal from Dallas County Court; Ed. S. Lauderdale, Judge.

Action by the St. Louis Expanded Metal Fireproofing Company against Theodore Beilharz and another. From a judgment for defendants, plaintiff appeals. Reversed.

Morris & Crow, for appellant. Etheridge & Baker, for appellees.

TALBOT, J.

This is an action brought by appellant, the St. Louis Expanded Metal Fireproofing Company, a corporation created under the laws of Missouri, against Theodore Beilharz and Joseph Linz, upon a judgment rendered in favor of appellant in the justice court of the city of St. Louis, in the state of Missouri, against the said Beilharz as principal debtor and the said Linz as garnishee, for the sum of $343.98, including interest and costs. The appellees pleaded the general issue, and specially, among other things, that appellant, upon all the dates mentioned in its petition, was a foreign corporation, and doing business in this state without having complied with its laws, and obtained a permit to transact business in said state; that they were never served with process in the suit in which the judgment sued on was obtained; that they never entered their appearance in said suit, and that, if any attorney appeared in said suit for or on behalf of either of them, such attorney was not authorized to do so. A trial was had before the court without a jury, and resulted in a judgment for appellees, from which appellant has appealed.

The trial court did not file conclusions of fact and law, and we are not advised of the grounds upon which the ruling made is based. The questions in the case are: (1) Was the judgment sued on sufficiently proved to authorize a recovery in favor of appellant upon it? (2) Was the business transacted by appellant in the state of Texas, out of which its original cause of action arose, of such a character as required a compliance by appellant with article 745 of the Revised Statutes of 1895 of the state, requiring a foreign corporation to file its articles of incorporation with and receive from the Secretary of State a permit to transact business in this state, or did the transaction constitute interstate commerce? (3) If not interstate commerce, and appellant had no permit to do business in this state, can these facts be shown in bar of appellant's right to recover on the judgment the basis of this suit? (4) Did appellant have a permit to transact business in this state?

In determining the first question, we do not find it necessary to decide whether or not the act of Congress relating to the authentication of domestic judgments applies to a judgment rendered in an inferior or justice court of another state. Very respectable authority may be found upon both sides of the question. Appellant did not rely alone upon that character of proof. An authentication of the judgment of a sister state in accordance with the provisions of the act of Congress is not the only method of proving such judgment when sued upon in the courts of another state. This may be done by some witness who has compared the copy offered in evidence with the original record entry thereof, or has examined the copy while another person read the original; and when so proved such copy is admissible as an "examined copy," and is sufficient proof, prima facie, thereof. In the case at bar we have the testimony of James J. Spaulding, the justice of the peace by whom the judgment declared on was rendered, and of T. Percy Carr, the attorney for appellant, to the effect that they had examined the copy of said judgment and other papers attached to appellant's petition, which were introduced in evidence on the trial of this case, and had compared them with the original docket entries, and found that they were true copies of the same. This testimony was uncontradicted, and sufficient to authorize a judgment for appellant, unless for some other reason shown he was not entitled to recover. Harvey v. Cummings, 68 Tex. 599, 5 S. W. 513, and cases cited.

Upon the question whether the transaction out of which appellant's original cause of action arose came within the terms of article 745 of our statute or constituted interstate commerce, the evidence shows that appellant entered into a contract with appellee Theodore Beilharz in January, 1898, by which it undertook to furnish the material and labor and construct portions of a large building in the city of Dallas, known as the "Linz Building," in conformity with a contract then existing between the said Beilharz, as contractor, and Joseph Linz and Simon Linz, as owners; that in accordance with its contract with Beilharz appellant sent a large quantity of material to Dallas to be wrought into said building, and also sent a number of laborers and employés to do the work it had engaged to do, together with one Quigley to superintend the same; that it required approximately 12 months to complete said work, during the greater portion of which time the said Quigley resided in the city of Dallas, and, together with appellant's laborers, was engaged in said work as appellant's agent; that during the progress of said work the said Quigley, as the representative of appellant, employed labor and made various purchases of material from parties in Dallas, Tex., to enable him to carry on said work. The foregoing facts were established by the undisputed evidence. In addition thereto, appellee Beilharz and H. A. Overbeck, the supervising architect of said building, testified: "That in making said contract the said Theodore Beilharz and his attorney, A. P. Wozencraft, acted for and on behalf of the said Beilharz, and one J. J. Franklin acted for and on behalf of the St. Louis Expanded Metal Fireproofing Company. That the negotiations for said contract prior to the consummation thereof were carried on in the city of Dallas, and that said contract was consummated at the Oriental Hotel, in the said city of Dallas. * * * That at the time of the making of said contract said J. J. Franklin was the resident agent and representative of the St. Louis Expanded Metal Fireproofing Company, and had been for several years prior thereto, and was for some time subsequent thereto. * * * That, while the agent and representative of said company, said Franklin was in Dallas a portion of his time, soliciting contracts for said company in Dallas and other points in the state of Texas." The only evidence tending to contradict the quoted testimony is the statement of appellant's secretary and treasurer, Harrison, "that the appellant never had a branch business or place of business in the state of Texas, and never had any authorized representative or agent located or doing business in said state," and his conclusion "that the only character of business which appellant ever transacted in Texas was that of ordinary interstate...