Petition for Writ of Certiorari — Adam v. Saenger

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Office - Supreme Oourt, v. Ss

FILED

| : JUL 6 1937

F H LE ed O P Y | = ELMORE GROPLEY

SUPREME COURT OF THE UNITED

STATES

No. AQ a.

OCTOBER TERM, 1937.

ESTABAN ADAM, PETITIONER,

_ YS. |

WILLIAM SAENGER, ET AL., RESPONDENTS.

PETITION FOR WRIT OF CERTIORARI TO THE

COURT OF CIVIL APPEALS FOR THE NINTH

SUPREME JUDICIAL DISTRICT OF THE

STATE OF TEXAS AT BEAUMONT.

SMD Gham

Howrn, ApaMs & Hart,

Attorneys for Petitioner.

~*~

s®

INDEX.

se Petition.

I. Summary of Matter Involved./............... 2-13

II. Reasons for Allowance of MEUEG Cabcacuiucneus 14-20

_ Brief.

1. Opinions of Courts Below and Date of Judg-

ment. PES EEE CT PETE T CT EE TS Te ee T eee 21

2. Jurisdiction. . . ......... — : eT eT eee . ; 21 -

(1) 28 U.S.C.A., Section 344 (b), and Article

IV, Section 1, of the Constitution of the

United States... .....cceceeceeeccceeceees 21

(2) Showing petitioner took all remedies allowed

by statutes of Texas and decijsions......... 21-25

(3) Showing how petitioner raised and. presented

throughout all of the courts the federal ques-

tion: of his right under Article IV, Section

1, of the Constitution of the ‘United States

to have the Texas courts give ‘‘full faith’

and credit’’ to the California judgment... .25-27

(4) Showing how all the reasons for allowance

of: writ, same being the assignments of error,

were presented and insisted’ upon at every

step in the proceedings throughout all of the

po eee ye eer ee eer eee eee 27-29

3. "Statement of the Case...........e. sees eee eee - 30

4. ‘Specification of Errors. i ae it ea . 30

ee. gf. Urry rer re rre eee Corre

“Tf party to a suit makes general appearance

as a defendant, and especially if he puts in is-

- | . InvEx

sue and litigates the jurisdictional] facts as to

whether or not proper service has been had

upon him, the judgment of the court thereon

‘is’ res judicata and operates as an estoppel.’’

6. Point Two... ....... Baal ating St eet an hE teri

“Tt is a constitutional. right of a litigant to

have the courts adjudicate an issue when ju-

dicial action thereon is properly invoked.*

7..Pomt Three. ........... eee deeds TTS Mag Bone :

“In Texas the statutes and laws of other

states must be plead and proved, otherwise

they will be presumed to be. the same as the

statutes and laws of Texas; and where the

statutes and laws of another state are plead

a general demurrer admits such’ laws and their

interpretation by.the courts to be as plead.”

ee ea ee see Ree 46

‘‘In filing its suit against Montes in the”

‘Superior Court of California and in authoriz-

- ing Bailey to represent it, the Beaumont -Ex-

port & Import Company was at all times per-

sonally within the jurisdiction of that court,

until it became completely defunct and in- —

capable of any Jegal action on September 15,

1933, and thereafter its statutory trustees, in

employing and authorizing Bailey to file. suit

in the name of the Beaumont Export & Im-

port Company to set aside’ the default judg-

ment, were personally and voluntarily within

the jurisdiction of said court through their at-

torney, Bailey.”’

bs i PR IE oS. Saban gtasecnstanbsverces Spy

**In refusing to adjudicate the paramount and

controlling issue of res judicata and estoppel

and in volunteering a construction of the Cali-

Iypex

fornia statutes ‘ prescribing service different

from the construction of said statutes by the

California courts, the Texas courts refused to

give the California judgment that full faith

and eredit required by Article IV, Section 1,

of the Constitution of the. United States.’’

$e. Pele Oe: 5 22 rae sess see, aia es ae

‘Substantive rights and liabilities of a dis-. -

solved corporation are determined by the state

of its creation; but the method.or manner of

‘obtaining service upon a dissolved corpora-

tion, as well as making service’ on all other de-

fendants, is determined by the law of the eo

forum.”’

11. California ‘statutes ‘regulating ‘rights and lia-

ee of dissolved corporations and extending

Pporate existence, ete. . 2 -.----- eee eer erreee

12. Appendix. Pan een Da BRETT reese ear Bee eee

_. (1). Jurisdiction of Supreme Court of Texas and

requisites of application for writ of error,

briefs and filing of motion for rehearing. - 57-61

(2) Jurisdiction of Court of Civil Appeals, as-

signments of error, briefs, motion for re-

hearing, filing copy of’ application to the |

Supreme Court for writ of error, etc....... 61-64

(3) Dissolutioa of corporations—laws of Texas.64-66

(4) Laws of California relating to dissolution of

corporations. . . .-----++--- ieee rrry eee 66-69

Iv : ares InpEx

Table of Cases.

Abercrombie vs. Stillman, 77 Tex. 589, 14S. W. 196. 56

7 Allen-West Commission Co. vs. Gibson (Tex. Civ.

' App.),- 228 S. W. 342..... ictdieiseaincnces * ae

‘American National Bank of Oklahoma vs. Gar- : a

land, 235 S. W. 562, 563 (Com. App. of ,

a a aan eee eke Need Kae 17, 45, 52 |

American ‘Railway eign Co. vs. Levee, 263 U.S.

i te i ka nav auke 25

Anderson vs. White, 32 Wis. 308. (Sup. Ct) eer 15

Bacon vs. Texas, 163 U. Ss. 207, 215, 16 S. Ct. 1023, .

te os ek han ka wae -%

Bea}jé, The Conflict 6f Laws, Volume 2. Section 450.9,

pages 1424 ‘and 1425..... ee ET eT TTT eee ee 39

Beale, The — of _— Volume 3; Section ©

: 589.1. rete BERRI Ka ORL CER ELAR AG ERS OR 54

Becker vs. ‘Cooper, 29 s. W. (2d) 1083 (Tex. Civ.

PR aster ede eh e Cae enna nd sans 48

‘Bigham Dees. vs. Port ‘sales Canal & Dock Co.

97.S. W. 686,.689 (Sup. Ct.-of Texas)........ 17, 46

Bradshaw vs. Mayfield, 18 Tex: 28.......... eee 56

Burdette ‘vs. Corgap, 26 Kan. 102 (Sup. Ct.)...... 15, 39

Burkburnett Refining Co, vs. Ilseng, 292 S. W. 170

Se) a ule peak exch gienveends 48

Butcher vs. Case Picedhing Machine Co., 207 S. W.

980 (Tex. Com. App. RS Yverrrrerrs Pog wre 48 ©

Chicago -Life Ind. Co. vs. Cherry, 244 U. S, 25, 37.

S. Ct. 492, 61 L. Ed.. 966............ Pereronrr i5, 31

Constitution of the United States, os IV, See- °

tion 1. Se PRT OR Prreee | regen 2,19

De Everett vs. Henry, 67 Tex. 402, 3 S: W. 566° (Sup. ~*

is & RGR Per erey meer ee .. 17,46

Droege vs. Emery, 105 S. W. 374 (Ky. Ct. App.) . .48, £9

ee Inpex . v

Barly VS. Cornelius, 24 S. W-. (24) 757 (Tex. Ct.

== Gy, App.). . . wecrccccccccccccccccgcccctecce 50

. Early- vs. Cartel, 39 S. W. (2d) 6 (Tex. Sup.

Ob). 6 6 cece eee eee e th ceeeee see ceeeeeetecers

ihiiaiees vs. Carson Dry Goods Co., 162 S. W.

142 (Sup. Ct. of Aa iain van an es ens 15, 35

Ellis vs. Mills, -28 Tex. 584.......-+-----eeeeeees 52

Farrar vs. this, 173. Cal. Rep. 94, 159 Pp.

: TE gy Wada cusnatncndceseccscedggqussassgecs 20, 51

. Fauntleroy vs. Lum, 210 U. S. 231, 28 S. Ct. 641,

BQ Le, Hed. 1039. ....ccccccccccccececkascccces §2

Ferguson McKinney Dry Goods Co. vs. Garrett, 252

S. W. 739 (by Tex. Com. App.), reversing judg-

ment (Tex. Civ. App.), 935 S: W. 245....\..- 53

Fred’ Miller Brewing Co. vs. Capital Ins. Co., 11

; Towa: 590, 82 Am. St. Rep. 579, 82 N. W. 1023.. 52

Freeman on Judgments, Volume 2 (5th Ed.), See-

tion 663, p. 1393.......-..- 2. eee e ee eee tees 53

Freeman on J ‘udgments, Volume 8 (5th Ed.), Section

1414, page 2915... 1... cece eee eee e ee ee cee eees 19, 47

Freeman on Judgments, Volume 3, Section 1454,

page 2992. 2. wc ceceeceeeeececereceeeeeeceees ot

’ Freeman on Judgments (5th Ed.), Section 1361, p.

ee Lg vaandpedsethbeneesienteadscasedveds

Freeman on n Judgments, Section 1381, page

MIB, gg nak esrccssccccvdesesessssressss 19, 40, 47, 52

Gamer Co. vs. Gammage, 241 S. W. - (Tex. Civ.

APp.). 6. cece cccceeesccnccscsasereeecssceces 48

Grantier vs. Roseorenee, 27 Wis. 488 ‘en. ‘Ct.).. . 15, 39

Greathouse vs, Forth Worth & Denver City Ry. Co. “

65 S. W. (2) 762, 766 (Com. App. of Texas,

Section .B). . 0 .ccccececseee cee eeeereeeeeerees 16, 43

Hall vs. Wilder Mis, Co., 293 S. -W. 760 (Sup. Ct.

Of MO.). 5 5 ..ccccccccccccctosccosscccosens _. 15, 32

a 3 _ Iywpex

; Hanley vs. Donoghue, 116 U.S. 1, 6 Sup. Ct .

i wh « dnngakncwekanneeeakaane iaewee 17, 45, 52

Harris County vs: Charlton, County Treasurer, 243

S. W. 460 (Sep Ct. of Texs)............... 16, 43

Iinois Power & Light Corp. vs., Hurley, 49 F. (2d) :

a cy Acdsamenende acd ohetansaeenesseuniekes 53

James vs. James, 81 Tex. 573, & S. W. 1087...... 56 .

Kelley vs. International Clay Products Co., 140 Atl.

ee CH GE, GE Big Bi co ce cccnececesncans .§

- Kenney vs. Supreme Lodge, 252 U. S. 411, 40 Sup.

Ct 371, 64 L.Ed. 638, 10 A. L. RB. 716 Kecueunn 52

Lawrence vs. State Tax Commission of State of Mis-

sissippi, 280 U. S. 276, 52 S. Ct. 556.......... 16, 43

Lowe vs. Superior Court (Sup. Ct. of Calif. ), 134

_P. 190, 14 Cal. App. 706.:................-- 20, 51

Mitchell vs. San Antonio Public Service Co., 35 S.

W. (2d) 140 (by Tex. Com. PS rere -.. D2

Nesik vs. Cole, 184 Pac. 523:.0...........00c000. 56

Norfolk, ete., Co., vs. Virginia, 225 U. S. 264, 32.S.

ay oe Ta Ss eae 3

Pease vs. Rathbun-Jones Engineering Co., 243 U. S.

le ee seb eck acdesdnccecessscectni 47

People of State of New York ex rel. Bryant vs.

Zimmerman, 278 U. S. 63, 49 S. Ct. 61........ 26

Porcheler vs. Bronson, 50 Tex. 555, 561...... -. .17, 45, 56 .

Puget.Sound Power & Light Co. vs. County of King, -

mee OU. & SR, 46 BCR Bak... cc cccncccccccece 25

Reasoner vs. Gulf, C. & S. F. By. Co., 203 S..W.

ee CU, GR. GE FD a cc ccsacceccccccevecs 17, 46

- Inpex _ Co vo

Revised Civil Statutes of Texas for 1925, Art.. :

1388. - Spee ten ve RP py Perr Tee 3

Revised Civil Statutes of Texas for 1925, Arts.

: SE oa tae ves ests esnehennceupaekan Sa

Revised. Civil Statutes of Texas for 1925, Art.

1728, Sections 1, 2; 3,.4, 5 and 6...:.........-. — 24

Revised Civil Statutes of Texas for 1925, Arts.

1740 and 1741... ......... PPE TEP POTEET TT Tee °23

Revised Civil Statutes of Texas -for 1925, Art.. - |

SS Va da ekand bokedachdudenauakiiaskesaiee ae

Revised Civil Statutes of Texas for 1925, Art. |

ES as Mhadieashdennaawes iubekies aaa ewewe . - 24

Revised Civil ‘Statutes: of Texas for 1925, Arts.

1844, 1846 and 1757........... keneea eke Joos Se

Revised Civil Statutes of Texas for 1925, Art.

1844. Lee Bec eeceeceees ey ere iveernnens 26

Revised Civil Statutes of Texas for 1925, Art — =;

MEME G8 TAG oa a iwc ctersvesncncesessncsaes 23

Richardson & Sortie Co. vs. Utah Stove & Hdw.

Co., 28 Utah 85, 77 P. 1....-.-- 22 .-ce ee weenes 19, 47

Ritter vs. Braash, 11 Cal. App. 258,-104 P. 592..... 20, 51

Robertson and Kirkham, Jurisdiction of the ‘Su- -

preme Court, Section 48, p. 84, and cases cited

under Note 30. ites cas Sain ae Cie aa eae 25 -

Roche vs. MeDonald, 975 U. S. 449, 48 S. Ct. 142, 72

ye FF sapere: Serer rere 52

San: Antonio & A. P. Co. vs. Wagner, 241 U. S. 472,

477, 36 S. Ct. 625, 60 L. Ed. 1110. 4........... 25

Seth vs. Lew Hing (Cal.), 14 Pac. (2d) Ga 53

Sullivan vs. Texas, 207 U. S. 416, 422, 28 S. “ 215, "

-.§2 L. Ed. O74 PVCS TET CrP Eey PES Pe Ee 25

Southern Pacific Co. vs. Walters, 221 S. W. 264 -

(Bs Se & . 3 APO ererTYT Terre Trier .. 16,43

Tatum vs. Maloney, 234 N. Y. Supp. 614.. . wees

_ York vs. State of Texas, 137 U. S. 15, 11.8, Ct.9.. 15

Yor | Inpex -

US.C.A., Title 28, Section 344(b). . . 2.2.2.5. i

US.C.A., Title 28, Section 350. . . .......s rere a

Van Natta vs. Van Natta, 200 S. W. 907, 908 (Tex.

_ Civ. App.), writ of error refused by Supremre-

Court i i” Se vere Pere ere 17,45.

‘Wiaites VS. “Bailey,- 7 Tex. We Deiat ines cl caes Be ;

A Western Union Telegraph Co; vs. Ashley, 137 °S._

W. 1165 (Tex. Ct. Civ. App.), writ of error de-

nied by Supreme Court of Texas............. 17, 45

Western Union Telegraph Co. vs. Crovo, 220 U. S.

, 364, 366, 31 St. Ct. 399, 55 L. Kid. 498 Pe re 1)

Wettentel vs., Robinson, 136 Atl. 673 (Sup. Ct.

| 1927 ). Fn Ee Pee ELEN Mi ong MaRS Pager 53

Wood vs. Siasshin, 8 Cal App. 258, 260......... PS)

| P a

Statutes and References.

California’ statutes relating to dissolved corpora-

| rer rr er erry errr rr ey Tr Teer rere ery 66-69

Statutes cited and copied in Peace vac ch dane os DT-69

Texas statutes- referred. 2 peat oer riee =

US.C.A., Title 28, Section 444(b)....-. 0 Sore ‘da. ae

SUPREME COURT OF THE UNITED

STATES & ;

«. OCTOBER TERM, 1937.

ESTABAN ADAM, PETITIONER,

. WILLIAM SAENGER, ET AL., RESPONDENTS. -

PETITION FOR WRIT OF CERTIORARI TO THE

COURT OF CIVIL APPEALS FOR THE NINTH

SUPREME JUDICIAL DISTRICT OF THE

STATE OF TEXAS AT BEAUMONT.

To THE iment THE, ‘Svrmoue eee OF THE UNITED

_ Srates:

The petition of Betabian. Adam, petitioning from a

final judgment of the Court of Civil. Appeals for the

. Ninth Supreme Judicial District of the State of Texas

(at Beaumont), affirming the judgment of a district court

of Jefferson County, Texas, sustaining a general demurrer’ |

to petitioner’s first amended original petition and. dis- — .

missing his cause of action against the statutory trustees

and stockholders of Beaumont Export & Import on

eee shows to _ ae Court:

SUMMARY OF MATTER INVOLVED. |

1. The petitioner brought this suit against the re-

spondents in the District Court of Jefferson County,

Texas, to establish and recover on a final, valid and un-

satisfied judgment rendered by a Superior ee of Los

Angeles County, California.

He claimed in his pleading in the trial court, and

asserted at every step in exhausting his remedies pro-

vided by the law of Texas in his appeals to all of -her

courts having jurisdiction of the cause of action, his con-

stitutional right to require the Texas courts to give said

Calitornia judgment that ‘‘full faith and credit’’ required

by Article IV, Section 1, of the Constitution of the United

States.

The manner in which this claim of right—this federal

_question—was expressly raised and presented throughout

the whole cause is shown in detail under the heading of

Jurisdiction, paragraph 3 of the supporting. brief (page |

25). ‘ .

2. The California judgment arose out of the follow-

ing facts:

‘On May 31, 1929, the Beaumont Export & Import

Company, a corporation created under the laws of Texas,

voluntarily entered and submitted itself to. the jurisdic-

tion of a Superior Court of Los Angeles County, Cali-.

fornia, a,court having general jurisdiction under the laws

of said state (paragraph 2 of the petition, R. 2 and 3).

and filed therein its suit against Rodolfo Montes for the

sum of six thousand forty-three and 37/100 dollars

($6,043.37), the alleged purchase price of certain goods

and merchandise.

Montes answered thereto and later, with the express |

permission of the court, filed his cross-action against the

said plaintiff corporation for alleged unlawful conversion

of the said goods and merchandise of the alleged value

of five thousand dollars ($5,000. 00), for which said amount *

the judgment by default herein sued upon was rendered

in his favor against Beaumont Export & Import Com-

pany (paragraphs 1 and 2, R. 1 and 2; Exhibit: A to.

petition, R. 21 to 24; Exhibit D to petition, R. 26 and 27).

Sometime after the filing of the'said suit in the Cali-

fornia court and while it was still pending, the Beaumont

Export & Import Company was legally dissolved by. the

voluntary action of its officers, directors and stockholders, ;

‘and a certificate of such dissolution was issued by the

Secretary of State of Texas; and thereupon the then

president and directors of said corporation became 1pso

_ facto, under | the Texas laws, the statutory trustees. |

to take charge of and administer the corporate assets as

‘4 a trust fund for the creditors and stockholders of said

company. (Article 1388 of the Revised’ Civil Statutes of

‘Texas for 1925, copied in. appendix.)

The said statute y trustees accepted -the trust by tak-

ing charge of said corporate assets and: have ever since

heen in possession thereof. (paragraph 17 of petition, R.

14 and 15). al

Wherefore, the ‘said statutory trustees and stock- -

holders were made defendants (respondents here), in this

suit. : ~ cron .

Estaban Adam,,. the plaintiff in the trial court and >

the petitioner here, by purchase for valuable consideration,

became the legal and equitable owner of said California ©

‘judgment (paragraph 15 of petition, +R. 13).

3. The following is a condensed statemént of the al-

legations of petitioner’s first amended original petition, to

which the District Court of Texas sustained a general |

demurrer and dismissed the cause of action:

(a) That the judgment entered by the Superior

Court of California in favor of Montes on his cross-action

against the: Beaumont Export & Import Company was a

_ final and not an interlocutory judgment, under the laws”

of California (paragraph 4 of petition, R. 4);.

(b) That: proper, legal and “personal service, as re-

quired by the laws ‘of California, was obtained on the

Beaumont _Export & Import Company by serving a true

. copy of the cross-complaint and order of the court per-

mitting the filing thereof upon the company ’s then -at-

_torney of record, Richard F. Bailey (paragraph 5 of

the petition, R. 4, 5 and 6); ;

thereof by the decisions of the California courts of last

| resort (citing the decisions), relating to and providing

the manner in which service must be made upon the op- |

posite party on a cross-complaint were expressly plead

(paragraph 8 of the petition, R. 8; and paragraph 24 of

“ | ' 5

the petition, R. 17 and 18).- It was expressly alleged that

the decisions of the courts of last resort of the State of

;California, in construing the statutery provisions set out

in the petition; hold that proper legal service may be

made of a cross-action on the adverse party by serving

his attorney of record in. the manner stated, to-wit, by

making service of the papers or instruments either by

- delivering same personally to the attorney of record for _

the adverse party, or, in the alternative, if it is made dur- ©

ing the attorney’s absence from his. office, by leaving the

notice or other papers with his clerk therein or with the

person having charge thereof, etc., and that the said serv-

ice was made on the eross-action filed by said Montes in

said California court on the said Richard F. Bailey as at-

torney of record for Beaumont Export & Import Company

while the cause of action filed by said Texas corporation

- was still pending therein (R, 8 and 9; and Exiibit B to

the petition, R. 24);

(d) That the said service obtained on the Beaumont

Export & Import Company, through said service made

upon its duly authorized attorney of record, started or set.

in motion the running ‘of the time within which the said

. corporation was required to answer, as expressly

provided by the laws and decisions of the State

.- of California; which said laws and procedure . provided

that a default judgment may be entered for failure to

answer and plead to such cross-complaint ‘upon the serv-

ice aforesaid (paragraph 2 & petition, R. 2 and 3); and,

therefore, the said court of California, as a basis for and

as a condition precedent to rendering the judgment on

the ecross-action aforesaid, had thus acquired actual and

personal service ‘of notice within its jurisdiction upon

the said Beaumont Export & Import Company while the

said company and its duly authorized attorney of record

were both within the territorial jurisdiction of said court

(paragraph 2 of petition, R. 3); — |

(e) The time within which the laws of California

required the Texas corporation to answer having expired,

and no answer in its behalf having been filed to said

cross-action, the attorneys for Montes filed’ of record

notice’ that on a certain day and at a certain hour they

' would move the’ court for an order to enter the default

of the said Texas corporation for failure to appear and

answer or plead to the said eross-complaint, and there-

upon duly served upon the said Richard F’. Bailey a true

copy of such notice and the said Bailey acknowledged -

receipt thereof by signing the original (paragraph 5 of

petition, R. 4 and 5). Said Bailey failing to appear at

the time and place stated for a hearing on the motion for

a default judgment, he was again notified and. given

ample opportunity to answer thereto, and at Bailey’s

request the hearing on said motion was continued to an-

other date set. and thereafter another continuance thereof

was granted at his request, and finally on May 24, 1933,

judgment in favor of the said Montes against the Beau-

mont Export & Import Company on said cross-action was

duly rendered and entered by the court (paragraph 5

of the petition, R. 5 and 6);

(f) ,Having been again notified of the. entry of said

judgment by the clerk, the said Richard F. Bailey on

a ce ee ee — tom

‘

the 15th day of November, 1933, served notice upon the

attorneys of record for Montes that on the 23rd day of

November, 1933, at a certain hour and place, that the

Beaumont Export & Import Company would move said

court for its order setting aside the default entered on

the 24th day of May, 1933, and for permission to file

its answer served therewith,- stating that the said judg-

ment was entered against the Texas corporation ‘‘through

the mistake, inadvertence, surprise or ‘excusable neglect

_ of plaintiff and cross defendant’s counsel,’’ and that said -

motion would be based upon the affidavits of certain per- |

.8ons named and filed therewith (paragraph 6 of the peti-

tion, and various exhibits mentioned therein, R. 6 and 7);

(g) All of the fact issues relating to whether or not

Jegal and personal service, as required by the statutes

and decisions of California had been obtained against the

‘Texas. corporation on said cross-action, were thereupon

litigated before the California court on said motion to

set aside the default judgment, and both parties adduced

evidence in the form of affidavits bearing on said fact.

issues, and the court having found and determined all of

said issues in favor of Montes and against the -Texas

corporation, the -question of whether or not there was

proper legal service of the cross-action became res judicata

and binding upon the. parties thereto, who were estopped —

to assert the contrary (paragraphs 6 and 7 of the petition,

R. 6 and 7; and paragraph 9 of the petition, R. 9 and 10);

(h) On the 15th day of enti: 1930, the Beau-

mont Export & Import Company was legally dissolved by

vote and consent of its officers, direetors and stockholders

and a certificate of. dissolution duly ‘issued by the Secre-

tary of State of the State of Texas (paragraph 16 of-

_ the petition, R. 13), and at the time of its dissolution -

William Saenger was its president and its directors wére:

William Saenger, .P. P. Butler, W. H. Garretson, H. A.

Perlstein and Charles. H. Weinbaum, and that the said —

_ president and directors thereupon became, under the laws

of Texas, and still are, trustees of the creditors and stock-

holders of said Beaumont Export & Import Company, and

were, -as such trustees, and by virtue. of their actual -ac-

ceptance of the trust, and no receiver, ever having been

appointed, ‘invested with all the power and authority as

expressly provided by the statutes, laws and decisions of

| the State of Texas, and that they have thus had and exer-.

cised full charge, control and possession ‘of the ‘assets

7 belonging to said company, of the alleged value of one

hundred forty-two thousand, five hundred dollang, ($142,-

500.00) (paragraph * of the petition, R. 14); @

(i) The legal life of the Beaumont Export & Import

Company was, under the laws of Texas, after its dissolu- -

tion, extended for a period of three years thereafter, with ‘

the power and authority to sue and be sued, and that dur-

_ing the said three-year period from September 15, 1930,

the date of its dissolution, the said statutory trustees _ |

and the corporation “were legally identical with respect

to the said service had on the cross-action in the Cali-

’ fornia court and with respect to the authority of Richard F.

Bailey to represent them in said court, and that his au-

thorized acts in requesting and obtaining two continuances

and postponements of the hearing of the motion to enter

judgment by default, operated as a waiver against the

_ Statutory trustees and the corporation of any alleged de-

-_ feet or lack of original service obtained on the cross-action

(paragraph 13 of petition, R. 12);

(j) That after the said voluntary dissolution of the

' ‘Pexas corporation, its statutory trustees continued to

prosecute the cause of action filed by the Beaumont Ex-

port & Import Company before its dissolution against

the said Montes, permitting the said cause of action to-

remain on the docket of said court, and retained and au-

thorized the said Richard F. Bailey as their attorney to |

enter their appearance in the said California court and to

file in the name of the Beaumont “Export & Import Com-

_ pany their motion to set aside the default judgment and

_ to litigate therein the fact issues relating to the validity,

under the California law, of the original ‘service on the

cross-action, and that they thereby waived any defect of

service (paragraph 13 of petition, R. 12), and were es-

_ topped to assert any lack of service by the judgment of

the California court after full hearing of evidence on the

fact issues, denying the motion to set aside the default

judgment .against the Beaumont Export & Import Com-

pany, and that the said judgment was res judicata of all

issues actually litigated’ and that could or should have

been litigated in said trial/(paragraphs 11 and 12 of peti-

tion, R. 11 and 12); |

(k) On‘the 15th day of September, 1933 (three years

after the dissolution), the Beaumont Export & Import

Company became defunct and not authorized by the law

of Texas either to ste or be sued (paragraph 9 of peti-

tion, R. 9), and thereafter, to-wit, on the 15th day of

_ November, 1933, the said statutory trustees of the Beau-

mont Export & Import Company authorized and directed

O°

‘the name of the Beaumont Ex

4 anne 10

the said Richard F. Bailey to file a motion in the name ~

of the Beaumont Export & Import Company to set aside

the said judgment on the cross-action, as heretofore al-

leged, and thereby either wilfully or inadvertently perpe-

trated a fraud upon the said California court in designedly

or negligently concealing from the said court and- from

the said Montes and his attorneys, and in failing to make

known to them the fact that the said corporation had been

dissolved for a period of more than three years prior

to, the filing of said motion, and that thereby the said

statutory trustees became and were the real parties in

said suit and motion to set aside the default judgment

and prosecuted and defended as aforesaid in the name

of the Beaumont Export & Import Company merely as

a convenience for themselves and for their own benefit

or for the joint benefit of themselvgs and the other stock-

holders of said corporation, and dre estopped to assert

the contrary (paragraph 11 of petition, R. 11).

4. The said statutory trustees retained the said |

Bailey and authorized him to enter their general appear-

& Import Company to

set-aside the default judgment &nd for an order of the

court permitting them, to file. their answer to the. said

cross-action, and authorized their said attorney to litr

gate all issues arising out of or pertaining to said mo-

tion; and the motion duly filed and the notice thereof

given by the said Bailey in pursuance of his. authority,

as alleged in the petition, and as shown by the record in

the California court, among other things stated:

“Said motion will be made on the following

grounds; to-wit: That said judgment was entered

-against plaintiff and cross defendant by: mistake, in-

advertence, surprise or excusable neglect of plaintiff ’s

‘ance in the said California ee to file their motion in

" qnd cross defendant ’s counsel?’ (paragraph 6 of sell

- tion, BR: 6 and 7; and Exhibit G to petition, R. 28

and 29).

‘The affidavit attached to the answer filed wy Bailey ;

to said cross-complaint, in pursuance of his said authority

. from his clients, contained the following:

‘“‘Richard F. Bailey, being duly sworn, deposes

and says: That he is the attorney of record for the

Beaumont Export & Import Company, a Texas cor-

— ete. (R. 35.)

5. On the said motion filed ” the Beaumont Export |

& Import Company to set aside the default judgment

against it, issue was joined by both parties and all of

the fact issues relating to whether or not proper service |

and notice; as required’ by the laws of California, had

_ been obtaitied upon the Beaumont Export & Import Com- |

pany through its attorney of record, Bailey, were duly

litigated before the said Superior Court of California

by the introduction in evidence before the court by both

parties of affidavits of various witnesses in support of

their respective contentions. (Petition, paragraphs 6 and

7, R. 6 and 7; affidavit of Richard F. Bailey, Exhibit H,

R. 29 to 31; affidavit of Adolph H. Levy, Exhibit I, RB.

21 and 32; affidavit of Lucile Holder, Exhibit J, R. 32

and 33; affidavit of W. M. Eggeman, Exhibit L, R. 36

and 37; affidavit of Clore Warne, Exhibit M, R. 38 to-43;

counter-affidavit of Richard F. Bailey, Exhibit N, R. 43 .

to 45: counter -afidavit. of . Clore Warne, Exhibit: O, R.

46 and 47.)

The California court having heard and considered the

above evidence on the fact issues tendered and litigated by

the parties, found the facts against the Beaumont Export —

& Import Company and overruled its motion to set aside“

the default judgment, and the court thereby found and

determined, both expressly and by necessary implication,

dll of said issues of fact with respect to the proper legal

service, under the laws and Afecisions of California, in

favor of said Montes and against the said corporation.

(Petition, paragraph 9, R. 9 and 10; order of court deny-

ing the motion to set aside default judgment, as shown

in Exhibit P, R. 47; and as shown by entry on the court

docket as of December 12, 1933, R. 49.) _

6. Said Court of Civil Appeals of Texas disposed

‘of the whole case before it by attempting to construe. the

statutes and decisions of California relating to what, the

laws of that state required as to service on a cross-action,

in the circumstances alleged in the petition, erroneously

holding that the Texas corporation was not within the

jurisdiction of the said California court, and that,’ there-

fore, it was necessary, under the California laws in order

to meet the requirements of legal. service, that a citation

be issued and served personal!y upon..the corporation,

and in so holding that court ignored and disregarded the

allegations of the petition showing. that the Beaumont

Export & Import Company was at all times-present and

within the -jurisdiction of the California. court through

Bailey, its duly authorized attorney of record, and in

filing in said court its cause of action against Montes;

that for said reasons the Beaumont Export & Import

Company was thus at al] times present and within the

jurisdiction of said court until it became defunct on the

‘15th day of September, 1933, by virtue of the Texas stat-.

- utes extending its corporate existence for three years from

its dissolution; and that. thereafter its statutory trustees

voluntarily submitted themselves to the jurisdiction of

said court through their attorney, Bailey, whom they

authorized to enter their general appearance in the’name

a °°. B

of the corporation to set aside the judgment aforesaid

(Opinion by Court of Civil Appeals, R. 67, 68).

Notwithstanding the case was before the Court of + +

. Civil Appeals exclusively on the sustaining of the general

demurrer, that ‘court presumed to find as a fact that

‘neither the Texas corporation nor its statutory: trustees

ever voluntarily submitted themselves to the jurisdiction

of the California court through Bailey, their attorney of

record, though the’allegations of the petition and the ~

records of said cause in the California court affirmatively

“Show the contrary. On this point the court, in its opinion,

said: .

‘Tt is well\settled that & judgment rendered in

one state against:a resident of another state, who

was not. served with process and did not appear in ,

the action, either personally or by authorized at-

torney, is not valid or binding out of the state where

rendered, although the attempt to acquire jurisdiction -

may have been in a mode recognized as sufficient and *

vali by the laws of the state where the jotgment

was rendered’’ (court’s opinion, R. 70).

In this statement the court properly holds, at. least

_ by necessary implication, ‘that if the corporation or its

statutory trustees ‘‘appeared in the action by atthorized

_attorney,’’ such voluntary appearance would ipso facto

give the court jurisdiction.

All of the errors hereinafter urged as ‘‘Reasons for

Allowance of Writ’’ and all those presented in the at-

—

tached supporting brief were duly presented. by peti- ,

' tioner to a!l of the Texas courts having jurisdiction

thereof, and all of such contentions were overruled and

denied. The details of the manner in which all of said ‘

issues were duly presented and urged in the Texas courts

are shawn under the heading of Jurisdiction, ne 4,

of the supporting brief (page 27).-

_~« 14

REASONS FOR ALLOWANCE OF WRIT.

1. The controlling issue in the case, as set forth in

--the > and‘ as duly presented fo the Texas courts

consisting of the District Qourt, the Court of Civil Ap-

peals and-the Supreme Court, was that the said statutory .

trustees of the dissolved and then defynct Beaumont Ex-

port & Import Company, in voluntarily entering and sub-

mitting themselves‘to the jurisdiction of ‘the said Superior |

Court of California by authorizing their: attorney, Bailey,

to file a motion to set aside the judgment theretofore —

rendered by that court, and by the act of their said at-

torney in’ filing the said motion in the name of said cor-

- poration, and in actually litigating all of the fact issues

relating thereto, were bound by the action of the court

in determining all of said fact issues against them and)

in denying their motion to set aside the judgment, whereby .

the said original judgment on the cross-action and the

judgment of the court jn denying the motion to sét it

aside became res judiodls of all issues that were actually

‘and those that could and should have been litigated

therein; and the said statutory trustees were thereby es-

topped to assert the contrary.

Therefore, the Texas courts erred in refusing ‘to

apply the well established principle of res ‘judicata and

thereby denied petitioner his constitutional! right to ha¥e

his judgment given.that ‘‘full faith and credit’? required

by Article IV, Sectidn 1, of thé Constitution of the United

States. Some of the decisions directly in point by the

‘ g

dennitne Court of the United States and by various State

courts of last resort are: .. *

Chicago Life Insurance Company v. ‘Chervy, 244

U.S. 25, 37 S. Ct. 492, 61 L. Ed. 966,

York v. State of Texas, 137 U. S..15, 11 S. Ct. 9. -

. Tatum v. Maloney, 234 N. Y. Supp.614. |

P Grantier v. Rosecrance, 27 Wis. 488, (Supreme

Court).

Burdette v. Corgan, 26 Tao. 102 (Sup. Ct.).

Anderson v. White, 32 Wis. 308 (Sup. Ct.).

Hall v. Wilder Mfg. Co., 293 S. W. 760, (Sup.

Ct. of Missouri).

Ederheimer v. Carson Dry Goods Co., 162 S: W.

142 (Sup. Ct. of. Arkansas).

2. hough petitioner by his, briefs and oral argument

} duly prégented the said issue of res judicata and estoppel

to all of Said Texas courts, the said Court of: Civil Ap-

peals arbitrarily: refused judicially te determine it, but

deliberately dodged said issue“by wrongfully presuming :

‘to construe the statutes_and decisions of California as”

to their requirements for proper service on a cross-action,

and by construing the said statutes and decisions. Gif-

ferently- from ‘the construction the California courts of

last resort put upon them, as alleged in-the petition, and

in concluding that adequate service on the a had.

not been obtained; and presumably held or said al-

le it Jack of proper original service, the question. of res

judicata became immaterial. The denial by the Supreme ‘

Court of the application for writ, of error for want of

jurisdiction was, under the Pexne laws prescribing the -

jurisdiction of the Supreme’ Court, equivalent to an ex-

press holding by the Supreme Court that the opinion and

judgment of..the Court ‘of Civil Appeals were correct

o Toe ae.

(Article 1728, Section 6, Revised Civil Statutes of Texas «+

for 1925, copied in oa baa alii

’

In arbitrarity uelialies judicially to “determine and

apply. the said principle of res judicata and &toppel, the

Texas courts wrongfully deprived petitioner of his con-

stitutional right as a litigant to have the courts expressly

to pass on all material issues, when such judicial action

_ is properly invokgd. . That such is an ‘established right

‘of a litigant has been definitely settled by decisions of

the Supreme Court of the United States and of the

‘Supreme Court of Texas, some of these decisions being:

Lawrence y. State Tax Commission of State of

Mississippi, 280 U. S: 276, 52 S. Ct. 556.

Southern Pacific Co. v. Walters, 221 S. Ww. 264

(Supreme Court of Texas).

* Harris County ¥. Charlton, County Treasurer, 243

S. W. 460 (Supreme Court of Texas).

Greathouse v. Fort Worth & Denver City Ry. Co.,

65 S. W. (2d) 762, 766 — App. of Texas,

Section

3. In presuming to construe the California statutes

prescribing the mode and manner of obtaining service on

‘a eross-action, and in construing the said statutes dif-

ferently frem what was alleged in the petition to be their

construction and application by the California courts of

last resort, the Court of Civii Appeals was clearly and

erroneously outside the issues before it as presented by

the appeal from the sustaining of the general demurrer, -

- for that, the Texas courts do not take judicial cognizance

of the laws of other states, but such laws must be alleged e-

17°

‘and proved as all other ultimate facts constituting a cause ~

of action; and, therefore, the respondents by their general

demurrer admitted the truth of the allegations of the

petition setting out the statutes of California and citing

the . California decisions construing said statutes, and

further admitted the truth of the allegations showing

. proper service on the cross-action in accordance .with said

California statutes and their construction .by the: Cali-

fornia courts.

Some of the Texas decisions holding ‘that the laws

of other states must be alleged and pres as any other

facts are: e

Porcheler v. Bronson, 50 Tex. 555, 561. 7

American National Bank of Oklahoma v. Garlamd,

235 S. W. 562, 563 (Com. App. of Texas). :

Van Natta v. Van Natta, 200 8. W. 907, 908, .

(Texas Ct. Civ. App. ), writ of error refused

-by the Supreme Court of Texas.

_ Some of the decisions by the Supreme Court of the

United States and by the Supreme Court and Courts

of Civil Appeals of Texas holding that a general de- ~

murrer admits the truth of the allegations stating the’

law of a sister state and the truth of all other allegations

sufficiently plead are:

Hanley v. Donoghue, 116 U. 8.1, 6 Sup. Ct. 242,

245.

_ Reasoner v. Gulf C. & 8S. F. ‘Ry. Co., 203 8. W.

592 (Sup. Ct. of Texas).

~ De Everett v.-Henry, 67 Tex. 402, 3 S. W. 566

(Sup. Ct. of, Texas).

- Bigham Bros: v.*Port Arthur Canal & Dock Co., ”

97 S..W. 686, 689 (by Sup. Ct. of Texas).

Western Union Telegraph Co. v. Ashley, 137 S.

W. 1165 (Tex. Ct. Civ. App.) writ of error

denied by Supreme, Court of Texas.

- 4, Even’ if the question of what the £alifornia

statutes required for proper service on a cross-action

had been before the Texas Court pf Civil Appeals for. its

ey decision, the construction of the California statutes by

the Texas Court of Civil Appeals was clearly erroneous,

as applied to the instant case, in that, the court indulged .

in an assumption contrary to fact that the Beaumont

Export & Import Company: and its statutory trustees

were not within the jurisdiction of the California court

through Bailey, their authorized attorney of record,

whereas, the petition affirmatively alleges and shows

- that they did voluntarily enter and submit themselves

to the jurisdiction of that court through their said au-

thorized attorney, and that thereby they ‘‘appeared and

authorized an appearance”’ in said court, and, therefore,

came within the exception expressly statéd by the Court

of Civil Appeals to the generak rule that ‘no state can

extend its jurisdiction over @ person who is not a resi-

dent of such state and not within its ‘limits at the’ tine,

and who does not appear or ‘authorize an appearance”’

a (opinion by. Court of Civil Appeals, R. 70).

The. general principle covefing this rere is accurately

stated by Freeman - ‘in his work on J udgmenta, in the

following language: tS a

‘If a person authorizes an action to be instituted

im another state in his behalf, he becomes thereby,

subject to any judgment which may be taken against.

N. him in that suit. So, a defendant, without going into

a state, may submit himself to its jurisdictiqn by au-

thorizing someone to appear for him there. In such.

case a judgment subsequently entered, is obligatory

upon him. Thus, a foreign corporation by making a

general appearance in an action against it, thereby

submitted to the jurisdiction and cannot attack the

judgment for lack of jurisdiction over it?’ Richard-

son & Boynton Coé& v. Utah Stove & Hdw. Co., 28

: text, Freeman on Judgments, Section 1381, at page

* 2855; also Volume 3, Freeman on Judgments (5th

~.. Ed.), Section 1414, at page 2915.

7 | Utah 85, 77 P. 1. See cases cited in support of the

3. The. construction yl tecred, by the Court of

Civil Appeals of the Califgrnia statutes prescribing the

requirements of service on a cross-action in that state is

contrary to the construction of said statutes by the Cali-

fornia courts of last resort as that construction is af-

firmatively alleged in the petition; end in refusing to

adopt and apply the said construction thereof by the

California courts of last resort, the Texas Court of Civil

Appeals has avoided its duty to give the California judg-

ment that ‘‘full faith and credit’’ required by Article IV,

Section 1, of the Constitution of the United States of the

tenor following:

' “Fall faith and credit shall be given in each

' state to the publie acts, records and judicial pro-

ceedings of every other state.’’

’-The above mentioned statutory provisiops of Cali-

fornia as plead and set out verbatim in the petition, *to-

wit. Section 442 (R. 18), Section 1011 (R. 8), and Section

1015 (R. 18), comprise all of the California statutory law

relating -to the requirements for adequate ‘service on a

- eross-action, and said statutes have been construed as

affirmatively alleged in the petition (paragraph 8 of

petition, R. 8, and paragraph 24 of petition, R. 17 and |

18) by the California courts of last resort to mean that

' where foreign corporations’ or residents of another state

,have entered their appearance through authorized at-

“tomey of record in a California court, proper and ade-

quate service may be made on a cross-action against them

by serving a copy of the eross-action and notice thereof

on such attorney of record\_The followinggdecisions by

the California courts so-hold:

Lowe v. Superior Court (S. Ct. of California),

134 P. 190, 165 Cal. App. 708.

Wood v. Johnston, 8 Cal. App. 258, 260.

Ritter v. Braash, 11 Cal.,. App. 258, 104 P. 592..

Farrar v. Steenbergh, 173 Cal._Rep. 94, 159 P.

707. :

Wuererore, your petitioner respectfully prays that

the writ of certiorari issue in usual form directed to the

Court of Civil Appeals fér the Ninth Supreme Judicial

District of Texas at Beaumont commanding that court

to certify and to send to this court for review a full and

complete transcript of the record and all proceedings in

cause numbered and entitled on its docket “No. 2988,

Estaban Adam, appellant, vs. ‘William Saenger, et al.,

appellees, and that the judgment of said Court of Civil

Appeals be reversed and rendered -as to the issue of

whether or not the first amended original petition to

which the general demurrer was sustained by all the

Texas courts-states a cause of action, in accordance with

_the foregoing petition for certiorari, and that. your peti-

tioner may have such other and further relief in the

premises as this Honorable Court may deem just.

—M. G: ADAMS,

. Counsel for Petitioner.

‘I certify that I have examined and am familiar with

the contents of the foregoing petition for writ-of

certiorari; that in my opinion it is well founded and en-

titled to -favorable. consideration by the court, and that

it is not filed for the purpose of delay. ves

- | _ M.G. Adams. .

BRIEF IN SUPPORT OF FOREGOING PETITION

FOR WRIT OF CERTIORARI.

, ‘%,

OPINIONS OF COURTS BELOW. ~°

The judgment of the District Court: of Jefferson

County, Texas, sustaining the general demurrer to said

first amended original petition, dated December 3, 1935,

is shown at R. 57-58; but there is no written pce by

the District Court.

The ‘opinion of the Court of Civil Apinels for the

Ninth Supreme Judicial District’ of Texas, sustaining

the judgment of the District Court, is found at R. 65-71;

the judgment rendered by that court on January 28, 1937,

at R. 71; but thé _ is not yet reported. .

JURISDICTION.

1 The jurisdiction of this court is based ‘primarily |

upon U.S.C.A., Title 28, Section, 344(b), and specifically

upon the fact that petitioner specially set up and claimed

his right under the $* full faith and credit’’ clause, Article

‘IV, Section 1, of the Constitution of the: United States,

and .the denial of said Tight by the Texas courts, as more

definitely shown in his. attached petition for writ al cer-

tiorari.

2. Petitioner exhausted all of his remedies ahd ap-

pellate rights provided by the statutes and laws of Foam, :

as shown by the following:

After thea adverse judgment by the Distriet Count,

petitioner perfected his #ppeal to the Court of Civil el

‘peals for. the Ninth Supreme Judicial District of Texas,

'‘ this being the court having appellate ear e of said _

cause (R. 58).

He duly filed his assignments of error, consisting of

the First, Second, Third, Fourth, Fifth, Sixth, Seventh, -

Kighth, Ninth and Tenth Assignments (R. 59-64), by. in-

eorporating said assignments of error in a typewritten

brief, -as provided and permitted by the ‘Texas statute

_ and by the rule of the said Court of : Civil Appeals, and

filed said brief in the said court within the time provided-

by law, also presented oral argument, and the said court

considered and passed on said appeal, as shown by its

opinion (Articles 1844, 1846 and 1757 of the Revised Civil

Statutes of Texas for 1925, copied in the Appendix.) ”

Said Court of Civil Appeals entered its judgment on |

January 28, 1937, and on February 9, 1937, petitioner

filed his application for relearing (R. 72-74) and his

amendment to said application (R. 74-75), which said

‘filing was within the time required | by Texas statutes

{Article 1877, Revised Civil Statutes of Texas for 1925,

copied in the Appendix). _

On February 17, 1937, the Court of Civil Appeals

overruled said motion for rehearing and the amendment

. to said motion (R. 75). , 9

The filing of the motion. for rehearing bejfngz~he

final remedy ‘in. the Court of Civil Appeals, as provided

by the Texas statute, the petitioner, on March 13, 1937, |

filed with the clerk of the said Court: of Civil Appeals

his application to the Supreme Court of Texas for writ of

- error and deposited with said clerk a true copy of the

application and notified the ‘attorney of record for re-

spondents of the depositing of said copy, a8 provided by —

the Texas statutes (Article 1881 of the Revised Civil

Statutes of the State of Texas), and the clerk of the

said Court’of Ciyil Appeals thereupon, on March 17, 1937,

forwarded the original’ ‘of. said - ‘application for writ .of

error to the clerk of the Supreme Court’ together with

the. original record of the ‘case and the opinion of the

Court of Civil Appeals, etc. (R. 78), and fully complied

with the statutory requirements of Texas (Article 1883

of the Revised Civil Statutes of Texas for 1925, copied

in the Appendix). ior :

. Petitioner’s application to the — Court of

Texas for writ, of error to the Court of Civil Appeals

for the Ninth Supreme Judicial District in said cause, as

above shown, was filed. with the clerk of the Court of

Civil Appeals within thirty days from the overruling of

the motion for rehearing, as provided by Texas statute

(Article 1742, Revised Civil Statutes of Texas, copied in

Appendix), and the said application fully complied in all

respects with the statutory requirements of Texas

.. 1740 and 1741 of the Revised Civil Statutes of

‘Texas for 1925, copied in the Appendix), and with the

rules of -the Supreme Court of Texas, prescribing sub-

; stantially the same requirements.

~On March 31, 1937, the Supreme Court entered its.

~ order stating that the said application for- writ of error |

‘*having: been duly considered, it is ordered that the ap-—

plication be dismissed for want of jurisdiction’? (R. 79).

By the statement, ‘‘want of jurisdiction”? in the order .

dismissing the application, the Supreme Court did not

mean that it was without jurisdiction, of the cause within

the general meaning of that term, but merely that ‘it re-

garded the judgment rendered by the Court of Civil Ap-

peals as correct, but that it was not satisfied. that the

' said opinion in all reSpects had correctly declared the

law, as provided by the Texas statutes prescribing the-

“‘appellate jurisdiction’’ of the Supreme Court, Article

1728, Section 6, and that part of said Section 6 of the

tenor following:

‘‘In all cases where 4he judgment of the Court

of Civil Appeals is a correct one and where the

principles of law declared in the opinion .of the court

are correctly: determined, the Supreme Court shall

refuse the application; im all cases where the judg-

ment of the Court of Civil Appeals is a correct one,

but the Supreme Court is not satisfied that the

- opinion of the.Court of Civil Appeals in all respects

has .correctly declared the law, it shall dismiss the —

case for want of jurisdiction.” {Article 1728, Ap-

-pellate Jurisdiction of the Supreme Court, Sections °

1, 2, 3, 4, 5 and 6, of the Revised Civil Statutes of

Texas for 1925, copied in the Appendix.)

On April 14, 1937, petitioner filed in the Supreme

Court his motion for rehearing on the application for

writ of error (R. 79), distinctly specifying the grounds

relied on, and otherwise fully complied with the Texas

statute, both with respect to the time of the filing of the

motion and the contents thereof (Article 1762, Revised

Civil Statutes of Texas, copied in Appendix). :

On April 28, 1937, the Supreme Court ‘‘after due _

consideration of the motion’’ overruled it (R. 80). | |

Petitioner was accorded no further remedy under the

statutes and laws of Texas, and thus by the refusal of

-”

the Supreme Court to exercise its discretionary power

to review, the judgment entered by the Court of Civil

Appeals became the judgment reviewable in the ‘Supreme |

Court of the United States. Bacon v. Texas, 163 U. S.

207, 215, 16 S. Ct. 1023, 41 L. Ed. 132; Sullivan v. Texas,

207 U. S. 416, 422, 28 S.Ct. 215, 52 L. Ed. 274; San

Antonio & A. P. R. Co. v. Wagner, 241 U. S. 472, 477, 36

S.Ct. 625, 60 L. Ed. 1110; ‘‘Jurisdiction,gf the Supreme

Court’’ by Robertson and Kirkham, Section 48, page 84,

and cases cited under Note 30. |

From said 28th Jay of April, 1937, therefore, runs

the three months’ period allowed by law .for application

’ to this court for writ of certiorari. 28 U.S. C.A., Section

350; American Rail ay Express Company v. Levee, 263

_U. S. 19, 44 S2Ct. 11; Western Union Telegraph Com-

pany v. Crovo, 220 U. S. 364, 366, 31 S. Ct. 399, 55 L.

Ed. 498; Norfolk, etc., Co. v. Virginia, 225 U. S. 264, 32.

"S.Ct. 828, 56 L. Ed. 1082; Puget Sound Power &. Light

Co. v. County of Ring, 264 vU. S. 22, 44 S. Ct. 261,

3. The substantial federal question ‘that petitioner,

was entitled to have the courts of Texas give his judg-

inent rendered by the Superior Court of California that ~

full faith and credit required by Article IV, Section 1,

of the Constitution of the United States, was. ‘‘raised,’’

‘‘specially set up and claimed**-and asserted throughout

the said cause and‘at every step of the procedure therein

as follows: : |

In the prayer to his first amended original petition

and established by this court under the full Aaith and

2°

Le a

We rime.

” aa

eredit clause sd the Constitution: of the United. States,”’

_ Ate. (R. 20).

In his first assignment of error (R. 59), and j in his

ninth and tenth assignments of error (R..64) filed in the

Court’ of Civil Appeals, he complained and asserted that

‘“the trial court failed to fulfill‘ and comply with its

duty expressly preseribed by Article IV, Section 1, of

the Constitution’ of the United States, which was copied

verbatim (R. 59, 64). ~

A copy of the brief duly filed by petitioner in and

considered by. the Court of Civil Appeals, certified by

the clerk of that court, was attached to the certified .

record sent to the clerk of the Supreme Court of the

United States; and the ten assignmehts of Yxror appear-_

‘ing im the record now before this court- €R. 59-65), are

‘verbatim | copies of the said assignments of error con-

tained in said Brief, as expressly provided -and permitted

by | Article 1844 of the Revised Civil Statutes of Texas

for 1925; said article being copied in the Appendix.

This is a substantial compliance with the requirements

_ by the Supreme Court of the United States to show that

‘a federal question was raised and the manner in: which

it was presented to the state courts. People of State of

New ¥ ork ex rel. Bryant v. Zimmerman, 278 U. S. 63, 49

S. Ct. 61. |

In his oe eee ee in the Court of Civil

Appeals, to-wit, in his first, second and fourth grounds

thereof (R. 72, 73 and 74), petitioner specifically claimed ~

and asserted that the Court of Civil Appeals in sustain-

,, ing the judgment of the trial court had failed and refused ‘

“‘to give that Tull faith and eredit to the public acts,

“ : a = °

‘records and jydicial proceedings of the State of Cali-

fornia required by said Artiele IV, Section 1, of the

Constitution of the United States’’ (R. 72).

Iso in his application to the Supreme Court of

. Texas for writ of error to the Court of Civil Appeals,

to-wit, in his first assignment (R. 75, 76), fourth assign~

ment (R. 77, 78) and fifth assignment of error (R. 78),

petitioner express ly claimed. and assérted that the Court

of Civil Appeals by its judgment had failed and refused

to give and had wrongfully denied him his said con-

stitutional right under the full faith.and credit clause of

the Federal Constitution; copying verbatim the’ clause

under which he ‘claimed said right (R. 76). ‘

- Again, in -his motion filed in the Supreme Court for

res on the application for writ of error he claimed

and asserted inhis second assignment of error (R. 79,

80) that the Supeme Court in dismissing his application

for the writ for alleged want of jurisdiction, and both

of the lower courts, as to all of the errors as shown and

set forth in. said application for writ of error, had er-

roneously “failed and refused to give the said California

judgment that full faith and credit-as required by said

article and section of the Federal Constitution; the

specific provision relied on being copied — (R. ae |

4. All of the reasons 5 relied on for allowance of. the

wrii, as shown in Division II of the petition and which

are hereinafter adopted as assignments of error, were

distinctly raised and asserted throughout all of the pro-

ceedings in the an courts, as evidenced by the

iad

(a). Reason No. 1 relating to res judicata was ex-

-_pressly raised in the petition (paregraph 9, R. 9); was.

urged in the Court of Civil Appeals in the fifth assign-

ment of- error (R. 61); was again urged in the second

‘and third grounds of the motion for rehearing in said

court (R. 72, 73); was distinctly presented in the applica-

tion to the Supreme Court of Texas for writ of error in

the first assignment of error therein (R. 75, 76); and

finally again urged in the Supreme Court in the motion

for fehearing on the application for writ of error, in the. -

first and second assigned errors (R. 79, 80).

“(b) Reason No. 2 presenting the error of, the Court

of Civil Appeals in refusing judicially . to determine the

issue “of res judicata, was presented at the first oppor-

tunity, to-wit, in the application for rehearing in that .

court in the third and fourth grounds thereof (R. 73, 74);

was again urged in the Supreme Court in the application

for writ of error, in the third assignment of error therein

* (RB. 77); and finally urged in the Supreme Court in the

. motion for rehearing on the ee for writ of

error in the first and secohd assigned ‘errors thereof -

(R. 79, 80).

of the Court of Civil Appeals in attempting to construe

the California statutes relating to requirements of service

on a cross-action in that state’ was distinctly raised and °

| presented at’ the first opportunity, to-wit, in the appli-

eation for rehearing in that cotirt, and the fifth ground

-thereof in the amendment to said application (R. 74, 75);

-was. urged in the application to the Supreme Court for

S 4

writ of error in the fourth assignment of error therein

(R. 77, 78); and finally urged in the motion for rehear-

ing on the application for writ of error in the first and

‘second assigned errors therein (R. 79, 80).

(d) . Reason No. 4 asserting error on the part of

the Court of Civil Appeals ‘in presuming to find as a

fact that-the Beaumont Export & Import Company and

its statutory trustees were never present within the juris-

diction of the said California court through. their: said

authorized attorney of record, Bailey, and that, therefore,

the service had on the cross-action was insufficient, was —

raised at the first opportunity, to-wit, in the application

for rehearing in ‘that court in the first ground (BR. 72),

and-in the fifth: ground in the amendment to the original

application (R. 74, 75); also urged in the Supreme Court Fae

in the application for writ of error in the fourth assign-

ment of error (R. 77).

{ey Reason No. 5 asserting’ error on the part of

the Court of Civil Appeals in volunteering. a construction

ofthe California statutes relating to service on a cross-

action and in giving a different construction thereof from

that by the California court, was-raised at the first op-

portunity in the application for rehearing in the Court

of Civil Appeals, to-wit, the fifth ground, as shown in

the amendment to the said application duly filed (R. 74,

75); was again urged in the Supreme Court. in the ap-

plication for writ of error, fourth assignment’ therein (R.

‘77, 78); and finally in the motion in ‘the Supreme Court

for rehearing on the application for writ of error, first

and second assigned errors (R. 79, sic

—.

. BOR tm “pen:

30 : .

8 y 2

STATEMENT OF THE CASE.

For a we here adopt the statement made under

the heading ummary of Matter Involved, Section I,

of the peti

SPECIFICATION OF ERRORS.

To avoid repetition, we here adopt as our ‘‘Specifi-

cation of Assigned Errors’’ to be urged, the ‘‘Reasons —

for, Allowance of Writ,’’ as numbered respectively from

l to 5, inclusive, and set forth under that heading i in Divi-

sion IL ha the petition. - '

POINT ONE.

The case at bar is controlled by the general rule

of law that if a litigant.enters his.appearance in court

‘for.any purpose other than expressly and exclusively

for contesting the court’s jurisdiction, he thereby

makes his appearance for all purposes and waives

any defect or lack of jurisdiction; and that if he

makes his general appearance and puts in issue and

‘litigates the jurisdictional facts and whether or not

there had been proper service, the ruling and judg-

ment of the court thereon becomes.res judicata, which

operates as a conclusive estoppel against all subse- .

quent ‘denials or litigation thereof. -

The pleading and the attached exhibits of the certi- _

fied record in the Superior’ Court of California conclu-

_ sively show that the motion filed by respondents. to set -

aside the judgment was not even for the purpose of con-

testing jurisdiction, but admitted jurisdiction of the’ court

and contended merely that the judgment ought to be set

: aside on account of the excusable neglect of Richard F.

'. Bailey, their authorized attorney of record in said suit.

_ In this motion the only ground for setting aside the judg-

ment was stated as follows: :

* “Said motion will.be made on the following:

grounds, to-wit: That said judgment was entered

against said plaintiff and cross defendant through

the mistake, inadvertence, surprise or excusable neg-

lect of plaintiff’s and cross defendant’s counsel’?

(Exhibit G to petition, R. 29).

"At the same time the respondents filed their answer

to said cross-complaint, in the verification to which ap-

pears the. following:

‘Richard F. Bailey, being first duly sworn, de-

poses and says: That he is the attorney of record

_for the Beaumont Export & Import Company, -a

Texas corporation,’’ etc. (Exhibit K to petition, R.

— 35). .

In Chicago Life Insurance Company y. Cherry, 244

U.S. 25, 37 S. Ct. 492, the Supreme Court of the United

States, in an opinion delivered by Mr. Justice Holmes,

‘stated the law on the point as follows:

‘This is a suit in Illinois upon @ judgment re-

covered in Tennessee against ‘the insurance company, -

plaintiff in error. They pleaded and set up at the

trial that there never was valid service upon them:

in Tennessee and that the judgment void. - The

, defendant in error (the plaintiff) wed in reply,

t Without dispute, that the defense was urged in

_ Tennessee by pleas in abatement; that, upon demurrer

to one plea and upon issue joined on the other, the

decision was for-the plaintiff; and that. the judgment

was affirmed by the higher courts. ' The plaintiff

32 .

had judgment at the trial in Illinois, the judgment

was affirmed by the appellate court, and a writ of

certiorari was denied by the Supreme Court of that

state. The’insurance companies say that the present

judgment deprived them of their property ‘without.

due process of law.

‘‘The ground upon, which the present judgment

was sustained by the appellate court was that, as

the issue of jurisdiction over the parties was raised

and adjudicated after full hearing i in the forther case,

| _it could not be reopened. in this suit. The matter

was thought to stand differently from a tacit as-

sumption or mere declaration in: 1 the record that the

court had jurisdiction.’’.

| The Sasiined Court affirmed the judgment, saying:

nes “Tf the Tennessee judgment had been declared

es void in Illinois, this court might have been ealled

upon to decide whether it had been given due faith

and credit. But a decision upholding it upon the

ground taken in the present case does not require’ us

to review the T nnessee decision or to go further |

than we have ioe.” .

‘Another statement made by the Supreme Court in

. that decision is applicable to the. case at bar, to-wit:

“If a statute should provide: that filing a plea

in abatement, or taking the queStion to'.a higher -

court, should have that effegt (of proper party sub-.

_ mitting itself to court’s jurisdiction) it could not be

said to deny due process of law. The defendant

would be free to rely upon his defense by letting

- judgment go by default. York v. Texas, 137 U. S.

15, 11 S. Ct. 9, 34 L. Ed. 604; Western Life In-

demnity Co. v. Rupp, 235 U.S. 961, _35 S. Ct. ie 59

V L. Ed. 220.’? ‘

: na

Hall _v. Wilder Manufacturing Company (Supreme

* Court of Missouri), 293 S. W.;760, was a suit brought

said:

v oe see

5 ~ ; ;

upon a judgment in personam réndered “by the Supreme

Court of New York. The Supreme Court of Missouri

‘The error assigned by defendant falls under two

, general heads. The firs} is that the trial court erred

"in sustaining the validity of the judgment rendered

by the New York court, it being the contention that

the court did not acquire jurisdiction oyer defendant;

and the second ig that error was committed in strik- .

; ing out the counter-claim set up by defendant.

Coming first for consideration in this case is

_ the effect of the fact of express adjudication by the

New York court that jurisdiction of the defendant

had been obtained in the original suit. The general

doctrine, that, in a suit brought in one state upon a

judgment rendered by a court of another state, the

jurisdiction of the court rendering such judgment

may be challenged, is not disputed by. counsel for

. plaintiff: Such is the settled doctrine.’’ ‘

‘

, Bon, +

' The court then stated that the jurisdiction of _the

New York court rested upon the fact issue as to whether

_ or not the corporation was doing business. in that state

and that it was a question pf due “process of law under

the constitution of the fies State&; and proceeding

the court said:

‘“‘Does the express determination of the New

York court that it had jurisdiction preclude inquiry

into-that question here? The cantention/is that the

express adjudication. is res adjudicata a d, cannot be

reopened by the defendant.

“It is a ptinciplé well settled and of general ap- .

plication that, where a question proper for judicial

determination is directly put ‘in~issue, and finally |

determined in a legal proceeding by a court having

competent authority and jurisdiction to hear and de-.

— the question, such decision and determina

tion of the question will be deemed final and conclu-

sive upon thé parties and their privies, in all further

_ ditigation between them in which the same question

arises, so long as the judgment remains unreversed

or is not otherwise set aside.

x»

“We are bound in a proper case to give effect «

to the full faith and credit clause of the federal con-

stitution. The defendant having invoked a direct

determination .of the question of jurisdiction over it

in the New York court, had a full hearing upon that

question, and, having permitted an adverse decision

to stand, we must give to the decision of the New

York court -wpon that question the same effect as

‘would be given to that determination within the State

of New York, or the same force and effect as if it

had been rendered by a Missouri: court. Tootle v.

Buckingham, 190 Mo. 183, 88 S. W. 619; Harding v.

Harding, 198.0. S. 317, 25 Sup. Ct. 679, 49 Law. Ed.

1066 ;.Howey v. Howey (Mo. Sup. Ct.), 240 S. W. 450.

455. The New York court having determined - the

question upon that evidence, at the instance of de-

fendant, the ruling is not subject to collateral attack

here, under the claim that the New York court -erred

in its opinion. -Tootle v. Buckingham, supra.

‘The test of jurisdiction is, whether the court

_ has:power to enter on the inquiry, .and not whether

its decision is right or wrong. - Hagerman v. Racuate

' (Mo.), 4 S. W. 77.

“* Having procured the New York jai to erer-

cise its power upon the question of jurisdiction over

_the person of defendant and to enter into, an author-

ized. inquiry as to such jurisdiction and directly de-

termine that question before proceedinn to judqment

upon the .merits, the defendant submitted itself to

that court for the determination of that question, tak-

ing the chance that .an adverse ruling, unreversed

and not appealed from, would preclude inauiry imto

the same question when sued upon ars judgment in

the court of another state. :

eee ee 35

| “Tf we are going to measure the judgment ren-

dered in the New York court by the rule applicable

to. a domestic judgment, then the defendant who.

sought and had his day in court to procure an ex-

press adjudication of the question whether the court

had jurisdiction over his, person, mefp with an ad-.

verse decision on that issue upon thd appeal of the

plaintiff, and permitted that decision Y

versed and without appeal, cannot have that question

reopened upon the ground that the court of the other

state erred in its opinion upon the facts submitted.

In such situation, we must take the judgment of -the

New York court at the same value as if rendered

by one of our own courts. Tootle v. Buckingham,

pra. ”

The pleadings in the case at bar —_— that the judg-

ment rendered by the California” court in adjudicating the

jurisdictional facts was not appealed from by respond-

ents, but that such adjudication ‘became a final judgment

(paragraph 3 of petition, R. 3). . |

The case of Hall vs. Wilder Manufacturing Company

cites and discusses. many analogous: cases, and the opin-

ion is a thoroughly reasoned discussion on the subject.

In the case of Ederheimer v. Carson Dry Goods Com-

pany (Supreme ‘Court of Arkansas), 152 S. W. 142, a

St. Louis firm of merchants sued the appelled, in Ar- .

kansas, being an Arkansas corporation; on a: judgment

_ Obtained by appellants against appellee in the Circuit

Court of the City of St. Louis, Missouri. The- defense

was that the «Cireuit Court, where the judgment was

obtained, was without jurisdiction. The appellee alleged

that ‘‘no service of summons or' process in said suit in the

Circuit Court of the City of St. Louis, State of Missouri, ‘j

has ever been had on this defendant,” ete.

o stand unre- .

Seatac ates

36 a i

_ The appellee filed in the Circuit Curt of St. Louis

a motion to-quash the alleged service, but the motion

was overruled. The trial court permitted appellee, over

. the objection of appellants, to show that it was a non-

resident of Missouri; that it is not doing business or

; authorized to do business in that state; that at the time

of service of summons on Ike Felsenthal he was not

transacting business for the appellee; and that he was

not such an agent of appellee as that service of summons

on him in St. Louis would bind appellee. The court found

that the Missouri court was without jurisdiction over

the person of defendant and that its judgment was void

and, therefore, open to collateral attack. But the Su-

preme Court of Arkansas said:

“The record shows that the Circuit Court of St.

‘Louis is a court of general jurisdiction and had juris-

diction of the subject-matter, and the only question

presented for our decision is whether or not the

finding and judgment of the Circuit Court of Mis- ,

souri, holding that it had obtained jurisdiction by

proper service upon appellee, is res adjudicata.

‘‘The appearance of the appellee in the Missouri

Circuit Court for the purpose of quashing the

sheriff’s amended return of service of summons in -

that cause gave that court jurisdiction of the person

of appellee for the purpose of quashing service, not

only ‘upon the.ground stated in the motion, but upon

‘any other ground that the appellee might have pre-.

sented. The appellee, upon filing the motion to

quash the service of summons, could have brought

forward any grounds that it saw fit to allege other

than that set up in the motion as a reason why serv- — 7

ice should be quashed.. The appellee, having ap-

peared in the Circuit Court of Missouri for the pur-

pose of quashing service, is estopped, not only from

a ae . e

Wat Caan :

setting up the reason for poe ven the service peer

m its motion, but also any reasons that it might

have set up as grounds for quashing such service.

The issue raised by the motion was whether or not

the Missouri Circuit Court had jurisdiction of the

person of appellee, and it was the duty of appellee,

when it questioned that jurisdiction, to bring forward

any cause that might have existed showing that the

court did not _ aan of the ‘person of ap-

pellee.

“*“Not having brought forward such matters then,

it ts estopped from taking advantage of them in a q

subsequent: proceeding to test the jurisdiction, and ie

the judgment of the court on that question, whether a

“right or wrong, is not subject to collateral attack on |

review by -the Circuit Court of another jurisdiction. _

“The judgment of a court of competent: juris-

diction operates as a bar to all defénses, either legal

or equitable, which were interposed or could have

been interposed in the sutt.

- “Until ‘the appearance of ‘condion an the Mis-

souri-court to quash service of summons, no issue |

was raised by it. It. was not before the court at all —

for any purpose, unless it had been properly served.

with process; and, while it was the duty of the Ctr-

cuit Court of Missouri to examine the service to de-

termine whether it had jurisdiction of the person of

appellee,*there was no issue on that question raised

by appellee. But when appellee appeared and moved

to quash, it distinctly ratsed that issue with all the

reasons that were, or could have been, urged as to

why the Circuit Court had not acquired jurisdiction

‘of the person of appellee.

'_ As. was said in Newcomb v..New York Central

& H. R. R. Co., 182 Mo. 708, 81 S. W. 1073: ‘If the

. defendant was of the opinion that the return was

not sufficient to bring it into ‘court and had confi-

dence in i?ts own opinion, it could have. remained -

away and let the plaintiff take his course; that was

a station in the progress of the case where the law

requires the party to rely on his own judgment and

take the risk of being sustained in the end.’ ”’

In the case at bar, it should -be specially ane that

_ the respondents ‘did not make the contention in the Cali-.

fornia court that Richard F. Bailey was not their duly

authorized attorney of record, either for the purpose of

accepting original service on. the cross-action or for fil-

-ing and litigating the motion to set aside the judgment.

_ on the cross-action. On the contrary, the motign filed

by Bailey in the Superior Court of California to set aside

the judgment based it on the express ground that he him-

selfeas the duly authorized’ attorney had been guilty of

neglect, but that his neglect in the circumstances was ex-

eusable; and all of said questions of fact were put in

issue and litigated before that court with the result as

heretofore stated. | | |

In Tatum v. Maloney, 234 N. Y. Supp. 614, it was

held: that defendants having retained attorneys in another

state to appear specially for them in an action against

defendants in that state to contest the court’s jurisdic-/"

tion, were bound by the action of such attorney in the

conduct of the litigation even though such attorney ex-

ceeded the limitation placed upon him by his client and

appeared generally. The court held that when a de-

fendant, for the purpose , of contesting the court’s juris-

diction, appears and submits the matter for adjudication,

he is bound by the result; and that the judgment of the

Supreme Court of Mississippi that defendant by moving

m the lower court to set aside default judgment thereby

makes general appearance and authorizes entry of judg-

ment against him, was entitled to full faith and credit

in the courts of. New York under the fult faith’ and credit

| clause of the Federal Constitution.

In Grantier v. Rosecrance, 27 Wis. 488 (Supreme

Court of Wis. ), the Supreme Court of Wisconsin held

that filing motion to set aside default ‘Judgment on

ground that the record did not show legal service upon

“him or that it showed no service and that the complaint

did not state a cause of action constituted a general ap-

pearing for all purposes of the suit and that adjudication

‘thereon by the trial court constituted an estoppel on

the principle of res adjudiwata.

In Burdette v. Corgan, 26 Kan. 102, it was held that

defendant must challenge the judgment on the single

. ground of jurisdiction, otherwise his appearance would

be construed as general and for all purposes of the suit.

In the instant case it ha been shown that the petition

alleges, and the record im the Superior Court of Cali-

fornia conclusively shows, that respondents. im the case

at bar filed their answer to the ‘merits of the cross-action,

at the same time it filed its motion to set aside the judg-

ment on the cross-action on the single ground that the

neglect of its’ attorney in not answering the cross-action |

and litigating it at the proper time was, in the circum-

3 stances, “excusable. : |

An accurate and complete statement of the law on

- this subject, with copious citations of supporting cases,

is made by the author Beale in his exhaustive work, The

Conflict of Laws, in, Volume 2, Section 450.9, ‘at pages

1424 and 1425, of the tenor following:

‘Res Judicata of: Jurisdictional Fact. The judg-

ment of a sister state is presumed to be valid; and if

no defect of jurisdiction appears on the record it

will be taken as valid in the absence of evidence to

the contrary. But evidence will’always be admitted

to disprove a jurisdictional fact, that is, a fact upon

which the judgment of the foreign court was based.

Such a fact commonly put in issue is that of domicile.

‘‘Nevertheless, if the jurisdictional fact was liti-

gated by the defendant in the foreign action and

found against the defendant, the question of juris-

diction becomes res judicata, and cannot be reliti-

gated; even if in the foreign action it. was put in is-

sue by a special appearance to deny jurisdiction, and

- was. relitigated upon that. In Degge vs. Baxter it

appeared that plaintiff got judgment against defend-

ant m Virginia, and later brought suit on the judg-

““—" ment in the‘ District of Columbia; the. defendant

pleaded that the Virginia judgment was rendered

without jurisdiction, and the question was litigated,

and it was found against the defendant. The plain-

tiff now sues in Colorado on the fudqment rendered

in the District of Columbia; The defendant cannot’

here set up the defense of lack of jurisdiction.’’

The legal. effect of the entering of their general

appearance in the California court by the statutory trus-

tees through their authorized attorney, Richard F. Bailey,

.to set aside the judgment and of litigating the jurisdic-

tional facts and of proper service under the California

statute is as stated by Freeman on J — Section

1381, at page 2855, to-wit :.

“‘If acperson authorized an action to be insti-

‘tuted m. another state in his behalf, he becomes

- thereby subject to any judgment which may be taken.

against him in that suit. So a defendant, without —

going into a state, may submit himself to its juris-

diction by authorizing someone to- appear for him .

there. In such case the judgment subsequently

entered is obligatory upon him. Thus a foreign cor-

-poration,; by making general appearance in am action

against it, thereby submits.to the jurisdiction and

cannot attack a judgment for lack of jurisdiction over

it. Richardson & .Boynton “Co. v. Utah Stove and

Hardware Co., 28 Utah 85, 77 Pac. 1.’’ |

The jurisdictional facts put in issue, in the case at

bar, by the motion to set aside the judgment and the

evidence adduced in support of said motion, and the

. eontroverting evidence, which were conclusively and —

finally determined by the court’s overruling the motion,

are as follows: “¢

(a) Whether said Bailey, as titeresy of record for

the Beaumont Export & Import Company and for the

statutory trustees thereof, had been properly served, as

required by the Colteente laws, with a copy of said cross-

action.

(b) Whether the said Bailey, in his capacity afore-

said, had been served. with notice of the motion filed by

* Montes and his attorney to enter the default of the —

cross-defendant, Beaumont Export & Import Company; « a

for failure to appear and answer or plead to the cross-

complaint.

acknowledging receipt of a copy of. said notice of motion

on the 15th day of April, 1933, was his bona fide signa-

ture, and whether or not he had actually signed. the

original: of ‘said motion and received a copy thereof.

(d) Whether or not the hearing on said motion to

enter said judgment by default was continued or post-

poned: on: two different ageasions at. the request of said

Bailey. i in his capacity aforesaid; and

(e). All of. the fact issues relating to proper § service

‘that could and’ should have been: put in issue, litigated:

and' determined by the court in passing upon and

rendering its. final order in granting or refusing the

cross-defendants’ motioa to set aside default judgment.

The California court having heard all the evidence —

on the litigated fact issues aforesaid, denied the said

motion to set aside the default judgment. (Paragraph ‘ 9

of Petition, R. 9, 10; and the various exhibits to petition

showing the evidence adduced by both parties in litigating

the issue of praper service under the California law, R.

28-33 and R. 36-47.) : ee

By this’ action the California | pr found and die.

termined, — expressly and by necessary ‘implication,

all of said issues of fact with respect to the proper legal.-

service under the laws and decisions of California, in~

favor of said Montes and against the said Beaumont na

port & Import Company and its statutory trustees and

¢ successors, who litigated said issues in the name of the

then defunct Beaumont Export & Import Company.

Therefore, all of said issues of -fact ‘relating to service

thereupon became and now are res judicata as among the

parties, to-wit, Montes and hig privies and successors in |

interest on the one hand, and. on the other, Beaumont

Export & Import Company and its statutory trustees and

successors as named in the petition, . all of whom aré

thereby estopped to assert or maintain anything to the

contrary. ; ?

; POINT TWO.

Ip evasively refusing expressly to adjudicate and

determine the principle of rés. jxdicata and estoppel;

though such judicial action was ‘properly invoked, the

Texas courts wrongfully deprived petitioner of a

_ fundamental and constitutional right.

_ In Lawrence v. State Tax Commission of State of

- Mississippi, 280 U. & 276, 52 S. Ct. 556, the Supreme

Court of the United States held that it was the duty

of the lower courts, whether state or federal to determine |

_expressly and not+ by implication the issues properly be-

fore, them, in the following language:

“‘But the constitution which ‘quarantees rights and

immunities to the citizen, likewise insures to him the

privilege of having those rights and immunities ju-

dicially declared and protected when such judicial

action is properly invoked. Even though the claimed

constitutional protection be denied on nonfederal

grounds, it is the province of this court to inquire

whether the decision of said court rests upon a fair

and substantial basis. If unsubstantial, constitutional

obligations may not be thus avoided.”’ :

The Supreme Court of Texas, in cases other than the ;

one’ at bar, has established the. same principle and de-

clared-the identical right of a litigant: Southern: Pacifio

Co. v. Walters (Sup. Ct. of Texas), 221 S. W: 264; Harris

County v. Charlton, County Treasurer (Sup. Ct of”

»Texas), 2438 S.-W. -460; Greathouse v: Fort Worth. &

- Denver City Railway Co. (Com. App. of Texas), 65 S. W.

» (2d) 762, 766. |

Though pétitioner devoted the larger part’ of’ his

‘brief filed inthe Court of Civil Appeals to this issue of

res judicata and estoppel, and stressed this point in oral’

leet

argument before that court, and. complainegof the court’s

refusal to adjudicate this: issue in his motion for re-

- hearing therein (third ground, R. 73), and again in his

application to the Supreme Court for writ of error

specially presented this issue as paramount and con-

trolling of the whole case (first, second and third assign- -

‘ments, R. 75, 77), and finally renewed the said complaint

in his motion for rehearing in the Supreme Court (R.

79, 80), the said courts persistently side-stepped, ignored

and refused to adjudicate the issue. a

POINT THREE. —

The Texas courts do not take judicial knowledge

of the laws of sister states, but such laws of other

states, when relied on, must be plead and proved as

any other ultimate facts; and the petition having al-

leged the statutes of California prescribing the re-

quirements for proper service on a cross-action, and

having alleged the construction given to said statutes

by the California courts of last resort, the said Cali-

fornia laws thereby became necessary ultimate facts ~

to be established by evidence upon trial on the merits;

and, therefore, the general demurrer interposed by

respondents admitted that the California statutes and

~_their construction by the California courts were as

alleged in the petition. | Rs? s .

It is an established rule that in a case appealed from

a state court, where it is the law of such state that its

courts will not take judicial knowledge of the laws of

another state involved in the case, the Supreme Court of

the United States, in accord with said practice, will also -

refuse to take judicial knowledge of the laws of such other |

state, unless such laws were plead and proved; and that,

in such case the: general demurrer admits that the laws

of the sister state are as alleged in the petition. Hanley -

v. Donoghue, 116 U. S. 1, 6 S. Ct. 242, 245, where the ;

Supreme Court of the United States said:

‘‘Wheneuer it becomes aheessary fer a court of

Qone state, in order to give full faith and credit toa .

judgment rendered in ahdther state, to ascertain the

effect which it has im“that state, the laws of that state

must be proved Uké any other matter of fact.’’

In Western: Union Telegraph Compeny y. Ashley, 137 |

S. W. 1165 (Tex. Civ. App.), writ of error denied by the

Supreme Court of Texas, in which the laws of Arkansas

relating to the mafter involved were plead, the Texas

Court of Civil Appeals held: ;

‘When appellee obtained a ruling a the court on |

his demurrer he, in effect, admitted that the law of. .

Arkansas was as ed by appellant. sg

The rule is thoroughly cutabliches in Texas, by de-

‘ . cisions of the highest courts, that the laws of other

states must be alleged and proved as any other facts:

Porcheler v. Bronson, 50 Tex. 555, 561; American National

Bank of Oklahoma v. Garland, 235 S. W. 562, 563 (Com.

App. of Texas); Van Natta v. Van Natta, 200 S. W. 907,

908 (Tex. Civ. App. ), writ of. error ee: ach - Su-’

preme Court of Texas.

In the case at bar the denied aiuilien that: was -

before the Texas courts for their adjudication was’

- whether or not the petition stated a cause of action, and - .

os this, under the Texas practice, has always been a pure

matter of law: Reasoner v. Gif C. é S. F. he Co., 203

S&. W. 592 (by Sup. Ct. of Texas); De Everett v. Henry,

67 Tex. 402, 3 S..W.-566; Bigham Bros. v. Port Arthur

Canal & Dock Co., 97 S. W. 686, 689: (by -Sup. Ct. of

Texas) ; Warner v. Bailey, 7 Tex. 517, 518. .

POINT FOUR.

- The Beaumont Export & Import Company before

its dissolution having entered and submitted itself

to the jurisdiction of the California court to file and

litigate its suit against Montes, and being at all times

represented by authorized attorneys of record, both —

before -its dissolution and after its dissolution, during

the period of three years for which its corporate life

was extended by the laws of Texas, that is, up to

September 15, 1933, the date upon which it became |

defunct, was at all times personally within and volan-

_tarily. submitting to the jurisdiction of said California -

court,. and during that time the said judgment was

rendered and entered against it. After the said cor-

poration became’ defunct, the statutory trustees au-

, thorized and directed the same attorney, Bailey, to

file, in the name of the Beaumont Export & Import

‘Company, a motion to set aside the said judgment

, and to litigate in said court all the fact issues relat-

' ing'to proper service, etc., and thereby the said stat-

utory trustees personally entered and voluntarily sub- -

mitted. themselves to the jurisdiction of that court

for the purposes aforesaid.

-The rule that either an-individual or a. corporation

may, without actually, entering another state, submit

“themselves to the jurisdiction. of’ its courts by retaining

and authorizing an attorney either to: file or defend ‘a suit

and become thereby bound by any action or judgment. of

the court, is a principle definitely established. Freeman

on Judgments, Section 1381, page 2855, also Volume 3,

Freeman on Judgments (5th Ed.), Section 1414, page

ardson and Boynton Co. v. Utah Stove & Hard-

ware Co., 28\Utah 85, 77 Pac. 1.

If the rul& were otherwise, individuals and corpora-

tions, residents of one state could enjoy all the advantages

of the courts of: tnother state and be tmmune and not

subject to any i the disadvantages or chances of litiga-

hon.

The Supreme. Cena of the United States has had-

occasion in Pease v. Rathbun-Jones Engineering Co., 243

U. S. 273, 37 S. Ct. 283, to consider and determine the.

nature and effect of the Texas statutes upon’ dissolved —

corporations, as follows:

‘It is contended that all suits pending against

the Peoples Light Company abated upon it dissolu- -

tion.. As'we read the Texas statute such a conse-

quence is carefully avoided. It is there provided

that upon dissolution the president and directors shall

_ be trustees of the creditors and stockholders of the

corporation, ‘with full power to settle its affairs’ and

' with power ‘in the name of such corporation to

collect all debts, compromise controversies, and main-

tain or defend judicial proceedings.’ This general

language makes no distinction between pending and

subsequent judicial proceedings which the trustées -

are empowered to maintain and defend in the. cor- iy

poration’s name; and there seems no reason why

such a distinction should be read into the statute.

There is also the further provision in the article that

‘the existence of every corporation may be continued

for three years after its dissolution from whatever

cause, for the purpose af enabling. — charged with

the duty to settle its a: ae

This construction of the Texas statutes by the Su-

preme Court .of the United States is in harmony with

‘the construction thereof by the Texas ‘courts. of last

resort: Revised. Civil Statutes of Texas, 1925, Articles

1388-1395; Burkburnett Refining Co. v. Ilseng, 292-S. W.

170 (by Tex. Com. App.); Butcher v. Case Threshing

Machine Co., 207 S. W. 980 (by Tex. Civ. App.); Becker

v. Cooper, 22-S. W. (2d) 1083 (by Tex. Civ: App). =*

The statutory trustees of the Beaumont Export & °

Import Company, after it became defunct, that is, after _

the expiration of the three-year period that its corporate

existence was extended’ by the Texas statute, authorized

the attorney, Bailey, who had been representing the cor-

poration in the said cause pending in the. California court,

to enter their appearance in said court by filing a motion

to set aside the judgment in the name of the said cor-

poration, and either negligently or fraudulently failed to

make known to the California court or to Montes’ at-

torneys that the said corporation was defunct; and by’ so

doing, the said statutory trustees became im leu of the

corporation the actual movants in the litigation in the

cause, and they are estopped to assert the contrary: |

Gamer Co. v. Gammage, 241 S. W. 736 (Tex. Civ. App.) ; |

Droege v. Emery, 105 S. W. 374 (by Kentucky Ct. App.).

These cases are directly in point. In Gdmer Company

vs. Gammage, Gamer continued to defend a damage suit

against the Gamer Company after that company had’ been

dissolved and after the expiration of.the three-year period

.. following its dissolution, and after a period of about

eleven years had elapsed and plaintiff’s cause of action

for damages was barred by limitation as against every-

49 |

one except the Gamer Company, the said Charles Gamer |

then made it known to the court and opposing attorneys

that sgid corporation’had been dissolved, and plaintiff

then made him a party defendant, whereupon he set up.

the defense of two-year limitation.. The Texas court

“held that he was estopped to make such a contention;

and that as the Gamer Company was non-existent for any .

purpose after. April 28, 1913, it was evident that the

defense of the suit was not carried on by the corporation

after that date; that it niust have been carried on by

someone in its name; and that Charles Gamer, who: owned

practically all of the stock of the company at the time.

it was dissolved, was the only person interested in’

carrying on the efense of the suit. The Texas courts

cited with approval the Kentucky case, Droege v. Emery,

supra, whigh is similar in all respects, except: only that

in the Kentucky case the cause of action was prosecuted

to a finality against the dissolved and incompetent cor- _

poration, while the Droeges and officers and stockholders

of the corporation were in fact defending the suit

throughout in the name of the corporation, etc. In the

case at bar this estoppel against the statutory trustees

was specially plead (paragraph 11 of ‘petition, R. 11;

paragraph 12 of —: R. 11, 12; — 13 of

petition, R. 12).

) Prior to the time the said corporation became de- -

_funct, to. vit, before the 15th day of September, 1933, said

. Bailey, as authorized attorney of the corporation, re-

quested and was granted by the court two continuances

of the -hearing on the motion filed by Montes for an

order of the court to enter the default of the cross de-

Pena

fendant, Beaumont Export & Import Company, for fail-. —

ure to appear and answer or plead to the cross-complaint,

a true copy of which was served upon Bailey. The legal

effect of these continuances granted at Bailey’s request

was that the Beaumont Export € Import Company and

its statutory trustees thereby waived all alleged defects .

in the original service. The Texas courts so hold: Early

v. Cornelius, 39 S. W. (2d) 6 (by Texas Sup. Ct.); Early

v. Cornelius, 24 S. W. (2d) 757 (by Texas Ct. Civ. App.)

This waiver was expressly alleged (paragraph 5 of peti-

tion, R. 4, 5).

It was also expressly. alleged in the petition that

with respect to the estoppel and the waiver above men-

tioned, the laws, jurisprudence and decisions of the courts

of last resort of the States of Texas. and California are

the same (paragraph 14 of petition, R. 13). .

‘POINT FIVE...

In attempting to evade and circumvent -the legal

_ effect of the allegations of the petition. pleading res

jadicata and estoppel, as. aforesaid, and in wilfully

refusing to adjudicate said issue, end. in attempting

to put a different construction upon the California

’ statutes prescribing service on a cross-action from

that established by the California courts of last re-

sort, the Texas courts have clearly failed in their

duty to give the California judgment that “full faith .

and credit” required by Article IV, Section 1, of the

Constitution of the United States.

As: heretofore shown, the petition plead the Cali-

fornia statutes relating to service on a cross-action and

alleged that the California courts had construed the said

statutes to mean that a cross-action is a pleading m the

case, and that serving on the adverse attorney. of record

of a copy of the cross-action and notice of the filing

thereof is proper and adequate service. This is the hold-

ing in the following California cases: Lowe v. Superior

Court, 134 P. 190, 165 Cal. App. 708 (S. Ct. of California) ;

Wood v. Johnston, 8 Cal. App. 258, 260; Ritter y. Braash,

11. Cal. App.°258, 104 P. 592 ; Farrar v. Steenbergh, 173

“Cal. Rep. 94, 159 P. 707.

In Wood v. Johnson, supra, the California court

eonstrued the California statutes here. involved as fol-

_ lows: | ” -

_ “Seetion 442, Code of Civil Procedure, as

amended by act approved March 20, 1907 (Stats. 1907,

p. 706), provides that ‘whenever the defendant seeks

affirmative relief against any party to the. action,’

_ ete. (the amendment consists in adding the last three

. words: italicized after the word ‘party’), he may, in

a proper case, file a cross-complaint, which must be

Served upon the parties affected thereby. There is

nothing contained in the section which indicates how

the service may be made upon such party.. By refer-

ence, however, to Section 465, Code of Civil- Pro-

_ cedure, we find that ‘all ‘pleadings subsequent to the

complaint must be filed with the clerk and copies

thereof served upon ‘+he adverse party, or his” at-

torney.’ By the express provisions of Section 422,

Code of Civil Procedure, as amended by act approved

March 20, 1907 (Stats. and Amendts, to Codes, 1907,

p. 705), the cross-complaint is designated as a plead-

img on the part.of the defendant. This being . true,

tt follows that the service is .sufficient- under said -

Section 465 if made upon either the adverse party

or his attorneys. In the case at bar, the written

acknowledgment of service of the cross-complaint in-

dorsed thereon and signed by plaintiffs’ attorney is

sufficient proof of due service of the cross-complaint,

and warranted the entry of default and conferred

upon the court jurisdiction to render the judgment

thereon.”’ -

ene

- The petition alleges not only the jaws of California

relating to proper service on a cross-action, but alleges

‘how: these statutes have been construed by the highest

California courts, and, therefore, the courts of Texas are

bound by these allegations unless the evidence adduced

upon the trial. on the merits should show otherwise:

- Hanley v. Donoghue, 116 U. S. 1, 6 S. Ct. 242; American

National Bank of Oklahoma vy. Garland, 235 S. W. 562

(by Com. App. of Texas); Mitchelk v. San Antonio Public

Service Co., 35 S. W. (2d) 140 (by Tex. Com. App.).

The full faith and credit clause of the constitution

requires that the judgment of a state court, which had

jurisdiction of the parties and of the subject-matter in |

suit, shall be given, in the courts of every other state,

the same credit, validity and effect which it has m the

state where it was rendered, and be equally conclysive

upon the merits: Roche v. McDonald, 275 U. S. 449, 48

S. Ct. 142, 72 L. Ed. 365; Hanley v. Donoghue, 116 U. S.

1, 6 Sup. Ct. 242, 29 L. Ed. 535; Fauntleroy v. Lum, 210

U. S. 231, 28 Sup. Ct. 641, 52 L. Ed. 1039; Kenney v. Su-

preme Lodge, 252 U. S. 411, 40 os Ct. 371, 64 L. Ed.

638, 10 A. L. R. 716.

With respect to the finality - the California judg-

ment, respondent- admitted in the Texas courts that under

the laws of California the said judgment was final and

that the laws of that state controlled as to this issue:

American National Bank of Oklahoma v. Garland, 235 S.

W. 562 (by Com. App. of Texas); Volume 3, Freeman

on Judgments (5th Ed.), Section 1391, page 2873.

A default judgment or decree of another state is

equally conclusive as to the rights thereby adjudicated

as any other kind or class of judgment: Ellis v. Mills,

28 Texas 584; Allen-West Commission Co. v. Gibson (Tex.

Civ. App.), 228 S. W. 342; Fred Miller Brewing Co. v.

. Capital Ins. Co.; 11 Iowa 590, 82 Am. St. Rep. 579, 82 N.

W. 1023; Volume 2, Freeman on Judgments (5th Ed.),

Section 663, at page 1393; Volume 3, Freeman on J udg-

ments (Sth Ed.), Section 1361, at page 2805. ‘

i. POINT SIX. |

The substantive rights and liabilities of a dis-

solved corporation are determined by the laws of the

state of its creation; but the method or manner of.

. obtaining service upon a dissolved corporation, as

well as making service .on all other defendants, is

determined by the law of the forum. ,

It is not the substantive law of California as to

- liability of dissolved corporations that controls the judg-

ment here: sued on, but. the substantive law of ‘Texas

controls the validity of the California judgment, for

the reason that the pleadings in the California court

show that the Beaumont Export & Import Company was —

a Texas corporation. Ferguson McKinney Dry Goods

Company v. Garrett, 252-S. W. 739 (by Texas Com. App.) ;

reversing judgment (Tex. Civ. App.) 235 S. W. 245; Seth

v. Lew Hing (Cal.), 14 Pac. (2d). 537 (holding that in

winding up affairs of a corporation the laws of its crea-

tion control); Illinois Power ¢ Light Corporation v.

Hurley, 49 F. (2d) 681, and cases cited; Wettentel v.

Robinson, 136 Atl. 673 (Sup. Ct. 1927); Kelley v. Inter-

notional Clay Products Co., 140 Atk 143 (Sup. Ct. of

Pennsylvania, 1928). ra F

Though the cross-action was filed after the Beaumont

Export & Import Company was dissolved (but before it

was defunct), without notice to Montes or his attorney

or to the court of such dissolution, the proper manner or.

method of service of process on- the cross-action against

the said dissolved corporation must be determined by the

_ California laws and not by those of Texas. Volume 3,

Conflict of Laws by Beale, Section 589.1; Volume 3,

Freeman on Judgments, Section 1454, at page 2992.

In the citation to Volume 3, Conflict of Laws by

Beale, supra, the rule is stated as follows:

‘““The proper method of service of process %s

determined by the law of the forwm. Each state has

the right to prescribe by-law how its citidens shall be

brought into its courts. Harrymore and Schriver v.

Roberts, 53 Md. 64, 75.’’

In Freeman on Judgments, supra, the rule is stated’

in the text as follows:

: “Subject to the limitations of the federal ‘con-

stitution, the validity of service of process is de

termined by the law of the state where the judgment

' . was rendered. Lincoln Safe Deposit Company v. Con-

tinental Life Insurance Company (Mo, App.), 249 S.

W. 677. Hence, in.an action upon 4 foreign judgment

a defendant attacking the sufficiency of service of -

process by a person not an officer, must show that

by the foreign ‘law such service conferred no juris-

diction. Robinson’ v v. Freeman, 236 Mass. 446, 128 N.

E. FAB. ” ‘

California Statutes Relating to Dissolved Corpora- .

tions, Extension of Corporate Existence, Etc. |

7 The California’ statutes, extending for certain pur-

poses the corporate existence of dissolved corporations

-. were not plead, for the reason that the substantive rights

and liabilities of the Beaumont Export.& Import Com-

pany, as a. Texas corporation, were fo be determined by

the Texas and not by the California laws.

But the special ‘California statute prescribing. the

method of making service on a dissalyed corporation,

with ‘respect to a cross-action is substantially the same as

that prescribed by general statute for making service on

all other defendants. This section is 402a, Civil —_— of

the tenor following:

‘‘Summons or process against a dissolved cor-

poration may be served by delivering a copy thereof

to an officer, director or person having charge of its

assets, or if no such person can be found, to any

person who is, or at the time of dissolution was, an

agent for service of process.’’

It would appear from the provision ‘‘at the time of

dissolution was an agent for service of process,’’ that the

attorney, Bailey, under the allegations of the petition,

‘would constitute such a person; and, consequently, the

service of process on him, who was the attorney of record.

for the Beaumont Export € Import Company at the time

- of its dissolution, would be in strict compliance with said

statute.

The petition (paragraph 22, R. 17) alleged that the

manner or method of service on a cross-action, as pre-

scribed bythe California statutes, was reasonable, m-

herently just and afforded an opportunity to adverse

parties to be heard and to have ‘‘their day in-court.’’

The California statutes extending the corporate life

of dissolved corporations are shown in verbatim copies

thereof in the Appendix. There is no substantial dif-

ference between the California and the Texas statutes on

this subject, except only that the California law places

no limit on the period of the extension, while the Tezas

statutes limit the extended period to three years. ~

The first or original.California statutes thus extend-

ing the corporate existence of a dissolved corporation

went into effect in 1929 and were amended in 1931 and

1933; and the original statutes and the amendments

thereto and the special statute relating to service on &

dissolved corporation are ‘copied verbatim in the Ap-.

pendix. ao |

The case of Nezik v. Cole, 184 Pac. 523, was relied on -

by respondents in the state courts to support. their con-

tention that the Beaumont Export & Import Company

upon its dissolution could no longer sue or be sued and

served with process in California, as was the rule under

the common law; but that case was tried and decided by

the California courts a few years before 1929, when the

above mentioned California statute changed the common

law rule. Therefore, the case cannot now be in point

even if the California law controlled.

It is a general principle—and the rule obtains both

in Texas and California—that if there is no pleading and

proof of the applicable laws of a sister state, there arises

a -presumption that the laws of the sister state, whether

statutory or-common law, are the same as those fof? the

“forum. Abercrombie v. Stillman, 77 Tex. 589, 14 8. W.

196; James v. James, 81 Tex. 573, 16 S. W. 1087; Brad-

shaw v. Mayfield, 18 Tex. 28 ; Porcheler v. Bronson, 50

Tex. 555.

Applying this established rule, the California court,

in adjudicating the cross-action against the Beaumont

Export & Import Company, could and should properly.

have presumed that the law of Texas extending the life

of corporations for the purpose of suing and being sued,

ete., (there being no pleading nor proof of the laws),

was the same as the California statutes on the subject.

then in force; and such presumption would thus have ~-

been in accord with actual fact.

_——— submitted,

. M. G. ApaMs,

a Counsel for Petitioner.

ers .

APPENDIX.

tees,

The following are verbatim copies of the Texas stat-

utes involved and being a part of the Revised Civil Stat-

‘utes of Texas for 1925.

Jurisdiction of Supreme | Court.

' Art, 1728.. Appellate Jurisdiction. The Supreme

Court shall have appellate jurisdiction co-extensive with

the limits of the State, extending to all questions of law

arising in the following cases when: same have ‘been

brought to the Courts of Civil Appeals from final judg-

gs ment of trial courts:

« 1. Those in which the judges of the Courts of |

' Civil Appeals may disagree upon~any question: of

_ law material to the decision.

2. Those in whjch one of the Courts of Civil |

Appeals holds differently froma prior decision of

its own, or of another Court of Civil- Appeals, or of

the Supreme’ Court upon any such question of law.

. 3. Those involving the construction or validity

of statutes necessary to a determination of the case.

4. Those involving the revenues of the state.

5. Those in which the Railroad Commission is

a party. 3

_ 6. In any other cage. in which it is sella to ap-

pear that-an error of substantive law has been com-

mitted by the Court of Civil Appeals which affects

the judgment, but excluding ‘those cases in which the

jurisdiction of ‘the Court of Civil Appeals is made ~

final by statute.

In all cases where the judgment of the Court of

Civil Appeals is a cérrect one and where the principles

‘of law declared in the opinion of the? court are correctly

determined, the Supreme Court shall refuse the applica-

tion; in all cases where the judgment of the Court of

‘ “Civil Appeals is a correct one but the Supreme Court is

not satisfied that the opinion of the Court of Civil Ap-

peals in all respects has correctly declared the law, it

shall dismiss the case for want of jurisdiction.

Provided further that in cases of conflict. named in

Subdivision 2 above, the Supreme Court may,.in its dis-

cretion, refuse the writ of error, where the court is in

agreement. with the decision of the Court of Civil Ap-

peals in the ease in which the application is filed ; and in

cases of such conflict with a previous opinion of the Su- -

preme Court, the Supreme Court may, in its discretion,

the case, reverse and remand the same on the application

for writ, of error.

Art, 1729. “Writ of Rear 3 or Certificate. All causes

\. mentioned in the preceding article may be carried to the

Supreme Court either by writ of ,error or by certificate

from the Court of Civil Appeals, but, the Court of Civil _

Appeals may certify any question of law arising in any

such case at any time they may choose, whether before or

_after the. decision of the case in said court.

- Art:- 1739. Good Cause to be Shown. The Supreme

Court may review final judgments of Courts of Civil

Appeals upon writ of error, when good cause therefor

be shown by application for such writ, as hereinafter re-

59.

quired, the sufficiency of such cause to be determined as

herein a.

Art. 1740. Potitio 8 f6r Writ of Error. A writ of

error before the Supreme Court may be applied for by -

’ petition addressed to said court and the. petition shall

contain such other requisites as may be. prescribed by

the Supreme Court; provided that said petition-shall be

| sufficient if it complies with the’ ae of Article

1741. ,

Art. 1741. Requisites of Application. In all cases

‘taken to the Supreme Court by writ of error it ‘shall be |

sufficient if the petition for the writ of error shall con- —

_tain the following:

(1) A brief statement as to the nature and re-.

sult of the suit in the Court of Civil Appeals.

(2) Specifying briefly the. particular grounds 7

and/or ruling or rulings of the Court of Civil Ap-

peals on which the error is based, with such state-

ments from the record as are necessary to show that .

Same was erroneous and was material to the decision.

(3). The authorities relied on, if any.

(4) A statement and/or argument on the errors

for which welief is a .

Provided that more than one question may be pre- |

_sented in - the same .petition; and further provided that

the Supreme Court may adopt rules with reference to.

writ of error procedure, but not inconsistent with, the |

provision of this Act or any other statute.

Art. 1742. Filing. The petition shall be filed’ with

the clerk of the Court of Civil Appeals within thirty days

from the overruling of the motion for rehearing.

. following:

Art, 1743. Petition With Record. The petition with

the origina] record in the case, and the, opinions of the

Court of Civil Appeals, and the motion filed therein, and

certified copies of the judgments: and orders of the

Court of. Civil Appeals and copy of the appeal or super-

sedeas bond shall be filed with the Supreme Court. The

party applying for the writ of error shall deposit with

to pay the expressage or carriage of the record to and

from the clerk of the Supreme Court, which sum shall

be charged as costs in the suit. |

Art. 1757. Briefs. In all cases appealed to the

Court of Civil Appeals and/or taken to the Supreme

Court, it shall be sufficient if said briefs contain the

4. A statement as to the nature and result of

the suit.

2. The alleged error or errors upon which the

appeal .is predicated.

3. The authorities relied upon. . |

4. A-statement and/or argument on the _errors

assigned. Provided, however, that the Supreme Court:

may adopt rules with reference to the form and

_ time of filing of briefs generally, but not inconsistent

with the provisions hereof.

it 1762. Motion for Rehearing. A motion for :

fifteen days after the date of entry of the judgment or

decision, of the court, and not later. Should the court

adjourn within less time than fifteen days after the rendi-

tion of the judgment, it may make such rules and regula-

61.

tions with reference to the filing of the motion as it may

deem proper. The grounds relied upon for the rehearing ~

shall be distinctly specified in the motion. The motion

shall give the name and residence of the counsel of the

opposing party if known, and if not known, the name and

residence as shown in the record.

Jurisdiction of Court of Civil Appeals. |

‘Art. 1819. Jurisdiction Defined. The appellate

jurisdiction of the Courts of Civil Appeals shall extend |

to all civil cases within the limits of their respective

districts of which the District Courts ‘and County Courts

. have or assume jurisdiction when the amount in contro-

versy or the judgment rendered shall exceed one hundred

dollars exclusive of interest and costs.

Art. 1821. Judgment Conclusive on Law. The judg-

ments of the Courts of Civil Appeals shall be conclusive .

on the law and facts, nor shall a writ of error be allowed

thereto from Supreme Court in the following cases, to-wit:

I. Any civil case appealed from the County

' Court or from a District Court, when, under the -

Constitution -a- County Court would have had original

or appellate jurisdiction to try it, except in probate

matters, and in cases involving the Revenue.Laws of: —

the State or the validity or construction of a Statute,

or cases involving conflicts. between decisions of the

(5urts of Civil Appeals or between a decision of a

Vourt of Civil Appeals and a decision of the Supreme

Court. | . ane

2. All cases of slander.

3. All cases of divorce.

mo | All -cases of contested elections of every

character other than for State officers, except where

the validity of a statute is questioned by the decision.’

5. In all appeals from interlocutory orders ap- :

pointing receivers or trustees, or such other interlocu-

tory appeals as may be allowed by law.

6. In all other cases as to law and facts, except

where appellate jurisdiction is given to the Supreme

- Court, and- not made final in said Courts: of Civil

Appeals.

_ Art. 1844. akennenea of Error. The appellant or

plaintiff j in error need not file assignments of error with

’ the clerk of the court. below, but he may embody in his

brief in the appellate court all assignments of error dis-

‘inetly specifying the. grounds on ‘which he relies. All

errors not distinctly specified are waived, but an assign-

ment shall be sufficient which directs the attention of the

court to the error complained of. The appellee or. de-

fendant in error need not file his cross- assignments of —

error with the clerk of the court below but may embody

‘them in his brief filed in the appennte court.

Art. 1846, - Appearance by Brief, ete. The attorneys

for both the plaintiff and defendant may file written,

typewritten or printed briefs or argument, if written not

to exceed fifteen (15) pages; and the court shall be re-

quired to notice ‘the same as if it were the personal ap-

pearance of the attorney, and shall not dismiss any suit.

or cause where such brief or argument is filed with the

papers for want of further prosecution. Said briefs shall

be sufficient if they comply with the requirements eal

Article 1757.

| 63

- Art. 1877. Motion for Rehearing. Any party de-

‘siring a rehearing of any matter. determined by any

Court of Civil Appeals, may, within fifteen days after

2 _ the date.of entry of the judgment or decision of the court,

or- the filing of the findings of fact and conclusions of

law, file with the clerk of said court his motion in writing

for a rehearing thereof, in which thé ground relied upon.

for the. rehearing shall be distinctly . specified, and the

‘ name and residence of the counsel of the opposing party

if known, and if not known, then the name and residence

of the opposing party as shown in the record. If the

court adjourns within less than fifteen days after the |

rendition of the judgment, the motion may be made at

; such time and in such manner as may be prescribed by

rules to be made by the Supreme Court.

Art. 1881. Filing Copy of Application. -When an

‘ application for a writ of error from a Court-of Civil

Appeals to the Supreme Court is*filed in the Court of .

Civil Appeals, the applicant shall at the same time de-

posit with the clerk of said Court of Civil Appeals a .

true copy of the application and shall notify the attorney

of record of the defendant in error of the deposit of said

copy.

on 1883. — to . Sa Court. When a

petition for a writ of error to the. Supreme Court is filed

with the clerk of a Court of Civil _Appeals, he shal] note

upon his record the filing of said petition, and promptly

forward the.same to the clerk of the Supreme Court with

the original record in the case and the ‘opinion of the

Court of Civil Appeals, the motions filed therein, certified -

copies of the judgment and orders of the Court ‘of Civil

Appeals, and a copy of the appeal or the supersedeas bond

_of the plaintiff in error. a oS

Dissolution of Corporations.

~ Art. 1388. Liquidation by Officers. Upon the dis-

solution of a corporation, unless a receiver is appointed

_by some court of competent jurisdiction, the president and

‘directors or managers of the affairs of the corporation

at the time of its ‘dissolution shall be trustees of the

creditors and stockholders of such corporation, with power

to settle the affairs, collect the outstanding debts, and

divide the moneys and other property among the stock-: .

holders after paying the debts due and owing by such

corporation at the time of its dissolution, as far as such

money and property will enable them after paying all |

just and reasonable expenses; and for this purpose they

may in the name of such corporation, sell, convey and

transfer all real and personal property belonging to such

‘company, collect. all debts, compromise controversies,

maintain or defend judicial proceedings, and exercise full

power and authority of said company over such assets

and property. ‘Said trustees shall be severally responsible

to the creditors and stockholders of such corporation to

the extent of its property and effects that shall have come

into their hands.

Art. 1389. Extension of Existence.. The existence of

every corporation may be continued for three years after

its dissolution from whatever cause, for the purpose of

enabling those charged with the duty to settle up its af- |

fairs. In case a receiver is appointed by a court for this

purpose, the existence of such corporation may be con-

tinued by the court so long as in its discretion it is neces-

sary to suitably settle the affairs.of such corporation.

Art. 1390. Effect of. Dissolution. The dissolution of |

a corporation shall not operate to abate, nor be con-

strued as abating any pending suit in which such corpora-

tion is a defendant, but such suit shall continue against

such corporation and judgment shall .be rendered as

though the same were not dissolved.

Art. 1391. Suit o on Claim. When no receiver has been —

appointed for said corporation, suit may be instituted on.

any claim against said corporation, as though the same

had not been dissolved, and ‘service of process may be

obtained on the president, directors, general manager,

trustee, assignee, or other person in charge of the affairs

of the corporation at the time it was dissolved, and judg-

ment may be rendered as though the corporation had not

been dissolved, and the assets of said corporation shall ‘be

liable for the payment of such judgment as if _ said ‘cor-

poration had not been dissolved. :

Art. 1392. May Sue Stockholders. If a corporation, -

| except a railway, charitable or religious corporation, be

dissolved leaving debts unpaid, suit may be brought

against any person, or persons who were stockholders at

the time of such dissolution without joining the corpora-

tion in such sujt; dnd if judgment be rendered and exe-

cution satisfied, any defendant. may sue all who were

stockholders at the time of dissolution for the recovery

of the portion of such debt for which they were liable.

Art. 1393, Apportionment of Debt. Execution upon _

such judgment shall direct the collection to be made from:

the property of each stockholder respectively. If any

number of stockholders-defendants in the case shall not.

‘have property ‘enough to satisfy his or their portion of

the execution, then the amount of. deficiency shall be

divided equally among all the remaining stockholders,

and. collections made accordingly, deducting from the

amount a sum in proportion tothe amount of stock owned

_by the plaintiff at the me the company dissolved.

age 1394. Forced Apportionment, Any stockholder

who pays more than his due proportion of any debt of

the corporation may, by suit, compel contribution from

the other stockholders. |

‘California Statutes Relati®g to Dissolved

I Corporation®

| - OriernaL Law oF 1929.

Civil Code, Sec: 399. Powers of. corporation: after

dissolution. | All corporations, whether they expire by

their own limitation, by forfeiture of charter by order —

of court, or otherwise dissolved, shall nevertheless con- °

tinue to exist for the. purpose of winding up their af- |

fairs, prosecuting and defending actions by or~ against

them, and of enabling them to collect and discharge ob-

ligations, to dispose of and convey their property, and

to collect and divide their assets, but not for the purpose

of continuing the business for which the corporation was

established.

Any assets inadvertently or otherwise omitted fngmn

the winding up shall continue in the dissolved corporation

for the benefit of the persons who could have been en-

titled thereto upon dissolution of the corporation, and

on realization shall be distributed sepeeengy.

Before the payment of any part of the ‘apital and

before beginning the business for which the corporation

was created, the incorporators named in any articles of

‘incorporation may dissolve the corporation by filing in

the office of the secretary of state a certificate, verified

by the oath or affirmation of a majority of the incorpo-

_rators named in the articles of incorporation, that no

_ part of the capital has been paid and no debts are un-—

paid, and thereupon the said corporation shall be dis-

solved, :

Civil Code, Section 400. Unless other persons are

appointed by the court, ‘the directors or managers of the

affairs of the corporation at the time of its dissolution

are trustees of the creditors and stockholders or mem-

bers of the corporation dissolved, and have full power

‘to settle the affairs of the corporation.

? 1931 AMENDMENT.

Section 399, Civil Code:. Continuation of corpora-

‘" tion. after dissolution. All corporations, whether ‘they -

expire by their own limitation, by forfeiture of existence

by order of court, or -are otherwise dissolved, shall

nevertheless continue to exist-for the purpose of winding

up their affairs, prosecuting and defending actions by

7 .

ee ee eee

or against them, ‘and of enabling. them to collect and

discharge obligations, to dispose of and convey their

property, and to collect and divide their asséts, but not

for the purpose of. contmuing business except in so far

as necessary for the winding up thereof. No action or

proceedings to-which a corporation is a party shall abate

by the dissolution of such corporation, :

Any ‘assets inadvertently or otherwise omitted ‘from’

the winding up shall continue in the dissolved corporation

for the benefit of the persons entitled thereto upon dis-_

solution of the corporation, and ‘on realization ‘shall be :

- distributed accordingly (added by Stats. 1931, p. 1821).

s 1933 AMENDMENT.

Section 399. Continuation of corporation after dis- .

solution.” (A corpogation which is dissolved by the ex-

piration of its term of existence) by forfeiture of ex-

istence by order of court, or otherwise (nevertheless

‘ shall) continue to exist for the purpose of winding up

(its) affairs, prosecuting and defending actions by or

against (it) to cojlect and discharge obligations, dispose -

of and convey (itg) property, and ( ) collect and divide

(its) assets, but #6t for the. purpose of continuing busi-

ness except in so far as necessary _ for the winding up |

thereof. No action or (proceeding) to which a corpora-

tion is a party shall abate by the dissolution of such

corporation (or. by reason of poneentings for dissolution

- and winding up thereof).

- Any assets inadvertently or otherwise omitted from

the winding up shall continue in the*dissolved corporation

for the benefit of the persons entitled thereto upon dis-

solution of the corporation, and on realization shall be -

distributed accordingly. .(In effect 90 days from and

after May 22, 1933. See. la, Art. IV, Const. ; ; Stats. 1933,

Chap. — 3

Service on Dissolved Corporation.

Section 402a, Civil Code: . .

Summons or process against a dissolved corporation

may be served by delivering a copy thereof to an officer,

director or person having charge of its assets, or if no

' such person can be found, to any person who is, or at the |

time of dissolution was, an agent for service of process.

If no such person can be found, summons or process may

be served upon the dissolved corporation by delivering a

copy thereof to the Secretary of State or. an etcemeed or .

deputy Secretary of State.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.