United States Fidelity & Guaranty Co. v. Richey

• Decision Date: 16 May 1929
• Docket Number: (No. 3617.)
• Citation: 18 S.W.2d 231
• Parties: UNITED STATES FIDELITY & GUARANTY CO. v. RICHEY et al.
• Court: Texas Court of Appeals

Page 231

18 S.W.2d 231

UNITED STATES FIDELITY & GUARANTY CO. v. RICHEY et al.

(No. 3617.)

Court of Civil Appeals of Texas. Texarkana.

May 16, 1929.

Rehearing Denied May 23, 1929.

Appeal from District Court, Cass County; C. C. Hines, Special Judge.

Action by the United States Fidelity & Guaranty Company against T. R. Richey and R. K. Coke. Judgment for defendants, and plaintiff appeals. Affirmed as to defendant last named, and reversed and rendered as to defendant first named.

Bartlett & Newland, of Linden, and King, Mahaffey & Wheeler, and Everett Bryson, all of Texarkana, for appellant.

O'Neal & Harper and O'Neal & Harvey, all of Atlanta, for appellees.

HODGES, J.

On October 8, 1925, the Milne Lumber Company, a private corporation, recovered a judgment against T. R. Richey and R. K. Coke in the circuit court of the city of St. Louis, Mo., for the sum of $3,542. In February, 1928, the appellant, claiming to be an assignee from the Milne Lumber Company, filed suit on that judgment against Richey and Coke in the district court of Cass county. The case was tried by the court without a jury, and a judgment rendered in favor of the defendants, Richey and Coke. The record of the Missouri judgment contains the pleadings of the parties. From these it appears that the suit was for the breach of a contract. The petition alleged that in November, 1919, the defendants were partners engaged in the lumber business under the name of T. R. Richey Lumber Company, and were nonresidents of the state of Missouri. An attachment was sought and obtained against the property of the defendants situated in that state. Some time before trial an answer was filed by attorneys purporting to represent both defendants. In addition to a general denial, the answer specially alleged a misunderstanding as to the agreement upon which the plaintiff's cause of action was based. A trial resulted in the following judgment:

"And at the said October Term, 1925, of said Court, the following further proceedings were had in said cause, to-wit:

                            "Thursday, October 8th, 1925
                "Milne Lumber Company v. T. R. Richey and
                     R. K. Coke. 44822-B
                

"Now at this day come again the parties hereto by their respective attorneys, comes also again the jury heretofore sworn and impaneled herein; thereupon the trial of this cause is resumed and progressed, and being terminated, the jurors aforesaid, upon their oaths as aforesaid, say: `We, the jury in the above cause, find in favor of the plaintiff, on the issues herein joined, and assess plaintiff's damages at the sum of Twenty-eight hundred dollars, 00/100 Dollars, with interest thereon at six per cent. per annum from May 10th, 1921, amounting to $742.00, aggregating $3542.00 dollars. Wm. M. Morgens, Foreman; Arthur E. Pahl, Frank North, Gustave H. Gruetzemacher, Edward J. Coff, Hy. Brockhoff, R. H. Stephens, A. L. Knoll, Julius H. Oetting, R. E. Wilson;' and the jury being polled, ten of the jurors as having signed and returned said verdict say they concur therein, but the remaining two jurors, Robt. Barrell and Louis Manawal, say they do not concur in said verdict.

"Wherefore, it is considered and adjudged by the Court that the plaintiff have and recover of the defendants the aggregate sum of Three Thousand Five Hundred Forty-two Dollars ($3542.00) together with the costs of this suit, and have therefor execution.

"Verdict and instructions filed."

An appeal was then prosecuted to the St. Louis Court of Appeals, but was dismissed by that court on November 10, 1927, for failure to comply with some of the rules of procedure.

The record also contains the following assignment of the judgment to the appellant in this suit:

"Hazel B. English, Clerk, St. Louis Court of Appeals.

"And afterwards, to-wit: on the 13th day of January, 1928, the judgment rendered in said cause October 8th, 1925, was assigned by the plaintiff to the United States Fidelity & Guaranty Company, which assignment being attached to the margin of the record containing said judgment is in words and figures, as follows, to-wit:

"State of Missouri, City of St. Louis,—ss.:

"In the Circuit Court, City of St. Louis, Missouri "December Term, 1927.

"Milne Lumber Company, a Corp., Plaintiff, v. T. R. Richey and R. K. Coke, Defendants. No. Div. #

"Assignment of Judgment

"Know all men by these presents that the Milne Lumber Company, a corporation, in consideration of the sum of Four Thousand and Five ($4005) Dollars to it paid by the United States Fidelity and Guaranty Company, a corporation, the receipt whereof is hereby acknowledged, does hereby sell, assign and transfer to the said United States Fidelity and Guaranty Company that certain judgment recovered by the said Milne Lumber Company, rendered on the 8th day of October, 1925, in the Circuit Court of the City of St. Louis, State of Missouri, against T. R. Richey and R. K. Coke, as by the records thereof more fully appears, and any and all sum or sums of money or other benefit or advantage which may be had or obtained by reason of said judgment.

"In witness whereof, the Milne Lumber Company had hereunto set its hand this 13th day of January, 1928.

                               "Milne Lumber Company
                                 "By Roscoe Anderson, Atty
                

"Attest 1/13/28. John Schmoll, Clerk."

In the trial from which this appeal is prosecuted Richey and Coke filed separate answers. Coke pleaded in abatement that he was a nonresident of the state of Missouri at the time that suit was filed and tried; that he had never been served with any process, had no notice of the suit till long after the judgment was rendered, and had never filed any answer in the case or authorized any one to appear and answer for him. He also alleged that he was not a member of the partnership known as the T. R. Richey Lumber Company at the time the alleged contract for the sale of the lumber was made, or at the time the cause of action arose; that he had withdrawn from that partnership long prior to those dates. For the reasons stated he claimed that the Missouri judgment was void as to him.

In addition to a general demurrer and general denial, Richey pleaded that the appellant was not the true owner of the judgment sued on and had no right of action thereon; that the Missouri court had no jurisdiction over the person of either of the defendants, and for that reason its judgment was void. He also attacked the judgment as void upon its face because based upon the verdict of only 10 of the 12 jurors. There was no special denial by Richey of his appearance in the Missouri court as indicated by the answer filed.

Coke testified to the facts alleged in his special plea denying the jurisdiction of the Missouri court over his person. Upon that testimony and the facts disclosed by the record of the Missouri judgment the court found, in substance, the following facts: (1) That the proof was insufficient to establish a transfer of the Missouri judgment from the Milne Lumber Company to the appellant, there being no evidence that Roscoe Anderson, by whom the transfer was executed, had authority to sign the name of the Milne Lumber Company to the assignment. (2) That Coke had never been served with process of any kind in the suit in Missouri, had no notice of the pendency of that suit, and had never authorized any person to enter his appearance therein or to file an answer for him. (3) That the Missouri judgment was void on its face because based on the verdict of only ten jurors. He further concluded that since the judgment was rendered jointly against Coke and Richey and was void as to Coke for lack of jurisdiction over his person, it was unenforceable against Richey. Upon those conclusions, and others not necessary to here mention, he rendered judgment in favor of both defendants.

All of the findings and conclusions of the trial court are attacked in this appeal, but we shall discuss only those assignments which we think present the more important questions.

That Coke had a right to attack the Missouri judgment upon the ground that it was rendered without jurisdiction over his person is now too well settled to require discussion. National Exchange Bank v. Wiley, 195 U. S. 257, 25 S. Ct. 70, 49 L. Ed. 184; Norwood v. Cobb, 15 Tex. 500; Walker v. Chatterton (Tex. Com. App.) 222 S. W. 1100; 2 Black on Judgments, § 835. The court correctly held that the Missouri judgment was void as to Coke.

However, we think the court erred in holding that the evidence was insufficient to prove the validity of the transfer of the judgment to the appellant. Article 2010 of the Revised Civil Statutes of 1925 provides: "An answer setting up any of the `foregoing' matters, unless the truth of the pleadings appear of record, shall be verified by affidavit. * * * 9. A plea denying the genuineness of the endorsement or assignment of a written instrument as required by article 573." Article 573 is as follows: "When suit is brought by an assignee or indorsee of a written instrument, the assignment or indorsement thereof shall be held as fully proved, unless the defendant shall file with the papers in the cause an affidavit stating that he has good cause to believe and does believe that such assignment or indorsement is forged." No such affidavit, or verified plea, was filed in this proceeding, and the record of the assignment was admitted in evidence without objection. If the above statutory provision is applicable to assignments of judgment, the failure to file such an affidavit or verified plea rendered it unnecessary for the appellant, in making out a prima facie case, to do more than offer the record of the Missouri judgment which contained a certified copy of the transfer. A judgment is a liquidated demand, the written evidence of a debt, no matter how the liability of the debtor arose or what the nature of the creditor's demand may have been. It is a written instrument within the meaning of article 573. McDonough v. Tutt, 31 Tex. 199; McCormick v....