Tourtelot v. Booker

• Decision Date: 26 June 1913
• Citation: 160 S.W. 293
• Parties: TOURTELOT et al. v. BOOKER.
• Court: Texas Court of Appeals

160 S.W. 293

TOURTELOT et al. v. BOOKER.

Court of Civil Appeals of Texas. El Paso.

June 26, 1913.

On Rehearing, November 6, 1913.

Appeal from District Court, El Paso County; A. M. Walthall, Judge.

Action by E. C. Tourtelot and others against L. E. Booker. Judgment for the defendant, and plaintiffs appeal. Affirmed.

McBroom & Scott, of El Paso, for appellants. Turney & Burges, T. A. Falvey, and Stanton & Weeks, all of El Paso, for appellee.

McKENZIE, J.

Appellants E. C. Tourtelot and T. D. Hogan filed this suit on the 21st day of September, 1911, in the district court of El Paso county, Tex., against appellee, L. E. Booker, to recover upon a judgment rendered in a district court of North Dakota. Trial was had before a jury upon plaintiff's first amended original petition, the defendant's answer, and the plaintiffs' first and second supplemental petitions. The judgment sued upon is alleged to be as follows:

"State of North Dakota, County of Grand Forks. In the District Court, First Judicial District. E. C. Tourtelot, as Receiver of the Grand Forks National Bank of Grand Forks, North Dakota, Plaintiff, v. L. E. Booker, Defendant.

"Confession of Judgment.

"I, L. E. Booker, of the city and county of Grand Forks and state of North Dakota, do hereby confess judgment herein in favor of E. C. Tourtelot, as receiver of the Grand Forks National Bank, of Grand Forks, N. D., for the sum of $31,000, and authorize judgment to be entered therefor against me, with legal interest thereon from the 14th day of July, A. D. 1897. This confession of judgment is for a debt justly due and owing to the said E. C. Tourtelot as receiver of the Grand Forks National Bank of Grand Forks, N. D., arising upon the following facts, to wit: Whereas the said Grand Forks National Bank was, on or about the 6th day of February, A. D. 1885, duly organized under and by virtue of the `National Bank Act' of the Congress of the United States of America, and acts amendatory thereto, and authorized to do business as a national banking association, and ever since said date, and up to the 23d day of April, 1896, transacted and carried on such business incident to said national banking association by reason thereof; and whereas, on or about the 23d day of April, 1896, said national bank was insolvent, and the Comptroller of the Currency of the United States of America, after due examination of the affairs of said Grand Forks National Bank, and therefrom becoming satisfied that said Grand Forks National Bank was insolvent, did on or about the 23d day of April, 1896, declare such insolvency to exist, and did assume and take charge of the affairs of said bank; and whereas, that heretofore, to wit, on or about the 15th day of August, 1896, the above-named plaintiff was, by the Comptroller of Currency of the United States of America, duly appointed receiver of the Grand Forks National Bank aforesaid, and thereafter duly qualified as such and entered upon the discharge of his duties as such receiver, and ever since said date has been and still is such receiver and in charge of the assets of said bank; and whereas, the capital stock of the said Grand Forks National Bank on the 23d day of April, 1896, was and is 2,000 shares of the par value of $100 each; and whereas, on the 14th day of June, 1897, the said Comptroller of the Currency of the United States of America, having ascertained and determined that the assets, property, and credits of said association were insufficient to pay its debts and liabilities, and, as provided by said acts of Congress, made an assessment and requisition upon the shareholders of the said Grand Forks National Bank of Grand Forks, N. D., of $100 each upon each and every share of the said capital stock held and owned by them, respectively, at the time of its default, and at the time said bank was found to be insolvent, and so declared by said Comptroller to be insolvent as aforesaid, and directed the plaintiff as receiver thereof to take all necessary proceedings, by suit or otherwise, to enforce to that extent the said individual liability of the said shareholders; that said assessment was made because it was necessary to enable the receiver to pay the said debts and liabilities, and the said Comptroller before making said assessment found and decided that it was necessary for the purpose of paying said debts and liabilities, which said assessment and requisition required that said assessment and payment thereof be made to this plaintiff on or before July 14, 1897, all of which defendant had due notice thereof; and whereas, the said defendant, L. E. Booker, was on the 23d day of April, 1896, and for more than 30 days prior thereto, and still is, the owner of 310 shares of the capital stock of said Grand Forks National Bank, and the same stands upon the books of said association in his name; and whereas, by reason thereof, and the facts hereinbefore set forth, the above-named defendant is indebted to said plaintiff upon said 310 shares of the capital stock of said Grand Forks National Bank at the rate of $100 for and upon each and every one of said shares of stock, in all the sum of $31,000; and whereas, the said defendant has not paid the aforesaid assessment, nor any part thereof, and there is now due thereon from the said defendant to said plaintiff, by reason of the facts aforesaid, the said sum of $31,000, with interest thereon at the rate of 7 per cent. per annum from July 14, 1897.

"Witness my hand this 10th day of August, A. D. 1897. Lewis E. Booker, Defendant.

"State of North Dakota, County of Grand Forks—ss.: L. E. Booker, being first duly sworn according to law, deposes and says that he is the person who signed the foregoing statement, and that he is the defendant therein named; that he is indebted to the said E. C. Tourtelot as receiver of the Grand Forks National Bank of Grand Forks, N. D., in the sum of $31,000, with interest thereon at the rate of 7 per cent. per annum from July 14, 1897, and that there are no offsets to the same, and that the facts stated in the foregoing confession and statement are true. L. E. Booker.

"Subscribed and sworn to before me this 10th day of August, 1897. Jennie Milne, Notary Public. [Notarial Seal.]

"To the Clerk of the District Court, in and for the County of Grand Forks and State of North Dakota: Under and by virtue of the foregoing confession and statement, you are hereby directed to enter judgment thereon in favor of the said plaintiff therein named, and against the said defendant for the sum of $31,000, with interest thereon at the rate of 7 per cent. per annum from the 14th day of July, 1897, together with the costs of this action to be taxed by you. Dated at Grand Forks, North Dakota, August 27, 1897. Charles J. Fisk, Judge of the District Court.

"In accordance with the foregoing confession of judgment and order for judgment, judgment is hereby rendered in favor of the plaintiff E. C. Tourtelot, as receiver of the Grand Forks National Bank of Grand Forks, N. D., and against the defendant, L. E. Booker, for the sum of $31,000 and interest on said amount from the 14th day of July, 1897, at 7 per cent. per annum, being the sum of $259.19, and the costs and disbursements herein, being the sum of $2, making a total judgment of $31,261.19.

"Witness the Honorable Charles J. Fisk, judge of the First judicial district, state of North Dakota, and my hand and the seal of the district court, this 27th day of August, A. D. 1897. L. K. Hassell, Clerk Dist. Court, By A. C. Hurst, Deputy. [Dist. Court Seal.]"

It is alleged, in substance, in the trial petition that the said Tourtelot, at the time of the recovery of said judgment, was receiver of the Grand Forks National Bank of Grand Forks, N. D., and that the court rendering the judgment was a court of record, having general jurisdiction, and had jurisdiction of the person of the defendant and of the subject-matter, and that under the laws of the state of North Dakota the judgment entered became a valid and binding judgment for the amount in said judgment stipulated in favor of said Tourtelot as receiver and against the said Booker, and that the said Tourtelot as receiver and the said Booker were the only parties to the suit. It was also alleged that at the time of bringing this suit the said judgment was valid and of full force and virtue in the state of North Dakota, and that the judgment in North Dakota had not been appealed from nor set aside; that no part of it had been paid; that the entire amount was due and owing, and under the laws of Texas it was enforceable against the defendant. It was also alleged that after said judgment was obtained in the district court of North Dakota the said Tourtelot resigned as receiver of said bank, and that one W. B. Wood was appointed and qualified as receiver in his stead; that thereafter the said Wood, as receiver of said bank, acting under proper authority, sold said judgment, and that by due course of assignment appellants became the owners of same, and entitled to recovery thereon, and that under the laws of the state of North Dakota the said judgment bears interest at the rate of 7 per cent. per annum from its date, and that appellants should recover of defendant the amount of the judgment, with interest thereon at 7 per cent. per annum.

The defendant answered, alleging, in substance, that the district court of North Dakota was without jurisdiction to hear and determine said cause against him, or to enter judgment against him, because he was not served with any process issuing out of said court in a suit then pending, nor did he enter appearance or confess judgment in any suit pending against him in said state, and that the judgment sued upon for said reason was null and void. Defendant also pleaded the 10-year statute of limitation of the state of North Dakota and of the state of Texas as a defense against appellants' recovery against him upon said judgment, and further alleged...