Stephens v. Thomasson

• Decision Date: 02 July 1945
• Docket Number: Civil 4721
• Citation: 160 P.2d 338,63 Ariz. 187
• Parties: ANDREW J. STEPHENS and Wife, MARTA STEPHENS, Appellants, v. W. A. THOMASSON, Appellee
• Court: Arizona Supreme Court

160 P.2d 338

63 Ariz. 187

ANDREW J. STEPHENS and Wife, MARTA STEPHENS, Appellants, v. W. A. THOMASSON, Appellee

Civil No. 4721

Supreme Court of Arizona

July 2, 1945

APPEAL from a judgment of the Superior Court of the County of Pinal. W. E. Truman, Judge.

Judgment affirmed.

Mr. L E. Canfil, Mr. Stanley Samuelson, Messrs. Jennings and Salmon, and Mr. Ozell M. Trask, for Appellants.

Mr. Tom Fulbright, and Messrs. Kramer, Morrison, Roche and Perry, for Appellee.

Stanford C. J. LaPrade and Morgan, J. J., concur.

OPINION

Stanford C. J.

This case is the outgrowth of an action filed in Hudspeth County, Texas, in 1933, wherein R. Hannah, doing business as The Hannah Construction Company, Fred Hall and Dan Hall and the Great American Indemnity Company were the original parties defendant. Later this defendant was made a party and thereafter the action was transferred to the District Court of El Paso County, Texas, where the action against all defendants except this one was dismissed. The case was there heard by the court, this defendant not being present.

We will hereinafter style the parties as plaintiffs and defendant as they were in both cases below.

The judgment of the District Court of El Paso County, Texas, was brought to this state where the plaintiffs sued the defendant, and the case was tried by a jury. This is therefore a "full faith and credit" action brought in this state on a judgment from the sister-state of Texas.

The defendant has claimed by his answer that he was not a party to the action when originally brought in the State of Texas, but later was approached by plaintiff M. J. H. Stephens and his attorney, Robert L. Holliday, who advised him that in order to procure a judgment against the original defendants it would be necessary to make him a party to the action; that defendant was induced to forego the employment of counsel, but to sign papers pertaining to the case as the same were presented to him by Robert L. Holliday; that defendant was promised that no judgment would be taken against him; that the purpose of having defendant to appear in the Texas case was to enable plaintiffs to obtain a judgment against the other defendants; that defendant relied on the said statements and did forego the consultation of counsel of his own choosing and did sign the papers presented to him by plaintiff Stephens and his attorney, including a document transferring the Texas case from one county to another.

At the close of the evidence at the trial in this state, counsel for plaintiffs moved for a directed verdict as follows:

"If your Honor pleases, at this time the plaintiff wishes to and does make a motion for a directed verdict because of the fact that the evidence does not show any sufficient proof on the defense to a foreign judgment duly authenticated and admitted in evidence, and on no reasonable hypothesis of any kind or character is it disputed or can it be disputed."

This motion was denied and later a verdict was rendered on behalf of defendant. From the judgment granted, and from all interlocutory or intermediate orders in said case before judgment, and from the denial of plaintiffs' motion for a new trial, plaintiffs appeal.

Plaintiffs offer but one assignment of error, which is as follows:

"The Court erred in denying plaintiffs' motion for a directed verdict, since plaintiffs' suit was based upon a judgment of a sister state, which judgment, properly authenticated, was introduced in evidence."

The issue that the plaintiffs present here is that a judgment from a sister-state may not be impeached for fraud.

Section 1 of article 4 of the Constitution of the United States reads:

"Full faith and credit to records and judicial proceedings of states. -- Full faith and credit shall be given in each state to the public acts, records, and judicial proceedings of every other state. And the congress may by general laws prescribe the manner in which such acts, records and proceedings shall be proved, and the effect thereof."

Plaintiffs quote, in support of their judgment, 31 Am. Jur., Judgments, sec. 541:

"It has been declared that recognition and effect may not be denied judgments rendered by courts of sister states, as distinguished from judgments rendered by courts of foreign nations, because of fraud in obtaining them. Under this rule, it is deemed necessary for a person against whom a judgment has been obtained by fraud to seek relief in the jurisdiction in which the judgment was rendered. There are, however, cases in which a judgment rendered in another state has been held or declared subject to nonrecognition on the ground of fraud. This rule has been applied where the fraud goes to the jurisdiction of the court, or constitutes a fraud upon the law of the forum, or operates to deprive the party against whom the judgment was rendered of an opportunity to defend the action when he had a meritorious defense thereto. This rule has been limited, however, to such fraud as may be set up against the judgment in the court which rendered it.

"As to a judgment rendered by a court of a foreign country, fraud is usually regarded as sufficient reason for denying the judgment recognition or effect. In this respect, it is immaterial whether the judgment is in personam or in rem."

We find this further statement from 31 Am. Jur., Judgments, sec. 549, to be applicable:

"In granting full faith and credit, recognition, or conclusiveness to a foreign judgment, reference is frequently made to the fact that the court which rendered the judgment was one of competent jurisdiction. Indeed, the clause of the Federal Constitution which requires full faith and credit to be given in each state to the records of judicial proceedings of every other state applies to records and proceedings of courts only so far as they have jurisdiction, and the courts of one state are not required to give full faith and credit to, or regard as valid or conclusive, any judgment of a court of another state, which had no jurisdiction of the subject matter, or of the parties, or, in proceedings in rem, of the res. Accordingly, the jurisdiction of a court rendering a judgment is open to inquiry under proper averments, when questioned in the court of another state. The party against whom the judgment is rendered is not forced to go to the state of the rendition of the judgment for relief. . . . ."

Appellants cited, among other cases, Christmas v. Russell, 5 Wall. 290, 18 L.Ed. 475; Williams v. State of North Carolina, 317 U.S. 287, 63 S.Ct. 207, 87 L.Ed. 279, 143 A. L. R. 1273 and Magnolia Petroleum Co. v. Hunt, 320 U.S. 43, 64 S.Ct. 208, 88 L.Ed. 149, 150 A. L. R. 413.

Defendant has raised the issue that a question not presented to the trial court cannot be raised for the first time on appeal. The plaintiffs made a motion for a directed verdict, "because of the fact that the evidence does not show any sufficient proof on the defense to a foreign judgment duly authenticated and admitted in evidence, and on no reasonable hypothesis of any kind or character is it disputed or can it be disputed." The motion, which now is relied on as the assignment of error heretofore quoted, does not intimate that a judgment of a sister-state may not be impeached for fraud as set forth in plaintiffs' proposition of law following their assignment of error. We think the defendant's claim in this respect at least merits our attention.

We quote from Board of Supervisors v. Miners & Merchants Bank, 59 Ariz. 460, 130 P.2d 43, 46:

"The motion to quash made in the court below did not include the grounds set forth in (a), (b) and (d), and these points were not urged in the trial court. We think, therefore, they fall under the well known rule that questions which were not presented to the trial court may not be raised for the first time on appeal. City of Glendale v. Coquat, 46 Ariz. 478, 52 P.2d 1178, 102 A. L. R. 837. . . ."

Again referring to the principal question in this case, whether fraud in obtaining a judgment in one state constitutes a defense to a suit on such judgment in a sister-state, we quote from Cole v. Cunningham, 133 U.S. 107, 10 S.Ct. 269, 270, 33 L.Ed. 538, where Justice Fuller said:

"The question to be determined is, whether a decree of the supreme judicial court of Massachusetts, restraining citizens of that Commonwealth from the prosecution of attachment suits in New York, brought by them for the purpose of evading the laws of their domicile, should be reversed upon the ground that such judicial action in Massachusetts was in violation of article 4, §§ 1 and 2, of the constitution of the United States. . . .

"'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.'

"This does not prevent an inquiry into the jurisdiction of the court in which a judgment is rendered to pronounce the judgment, nor into the right of the state to exercise authority over the parties or the subject-matter, nor whether the judgment is founded in, and impeachable for, a manifest fraud. . . ."

The testimony in this case shows that Robert L. Holliday was the attorney for the plaintiffs in the Texas court as well as in the trial in Arizona. Holliday testified in this case that he was interested in the case from the standpoint...