Armendiaz v. de la Serna

40 Tex. 291

• Court: Texas Supreme Court
• Decided: July 1, 1874
• Status: Published

Opinions

Walker, J.

This action is founded on a draft for $5016.95, drawn at Soto de la Marina, in Tamaulipas, Mexico, in favor of Ysmael Rodriguez, on Don Diego de la Lastra, of Tampico. The original petition was excepted to for want of protest and proper execution on stamped paper, under the laws of Mexico.

The court erred in sustaining the exception without proof of the Mexican law. The laws of foreign States must be proved.

In an amended petition the plaintiff denied the right of the defendant to notice and protest, upon the ground that she had no funds in the hands of the drawee to meet the draft, and that she was not a creditor of the drawee, and the laws of Mexico are again appealed to as authority dispensing with notice and protest in like cases. And here is another logical contest in the pleadings over the laws of Mexico; for the defendant excepted to the amended petition on the ground that the laws of that country make notice and protest an indispensable prerequisite to fix the liability of drawers and endorsers.

The plaintiff, in the amended petition, undertakes to excuse the want of proper stamped paper in the execution of the bill, on the ground that the article could not be had in the market at the time the bill was drawn, and that by subsequently affixing the necessary stamped paper to the bill it was made good. This was excepted to as not being in accordance with the law of Mexico. This exception was sustained by the court, and j udgment respondeat ouster, to which the plaintiff excepted.

At a subsequent term of the court, the plaintiff moved the court to set aside its rulings on the defendant’s exceptions to the original and amended petitions. The court overruled the motion, and the plaintiff excepted. The motion was properly overruled, coming as it did too late at the subsequent term of the court. (See Rogers v. Watrous, 8 Texas, 65.)

The rights of the plaintiff, as well as those of the defendant, can still be considered by the courts. This bill being drawn in a foreign country, and to be paid there, must.be governed by the lex loci contractus; and when we have proof of the Mexican law, we may then, so far as applicable, administer those laws under the lex fori. If we knew what were the ordinances of Bilbao, and what was the code of Commerco, and had somebody to swear to them, we could then probably determine with readiness whether the drawer of this bill was liable or not. Like information would enable us to pass upon the question of essentiality in executing a bill on unstamped paper; but it may be borne in mind, that the courts of this country, following, perhaps, the example of the English courts, do not attempt tq enforce the revenue laws of other countries. (1 Johnson R., 96; Holman v. Johnson, Cowp., 343.) This case was dismissed in the District Court on the pleadings. The rulings proceed upon the ground that the instrument sued on was not executed on stamped paper, as required by the law of Mexico; and, secondly, that the plaintiff did not set out the protest of the bill. This judgment appears to have been without proof of the Mexican law, and was erroneous. (1 Greenleaf, Secs. 486-488; Bryant v. Kelton, 1 Texas, 434; Crosby v. Huston, 1 Texas, 203.) It is claimed, that by the laws of Mexico the drawer having no funds in the hands of the drawee to meet the draft, notice and protest is dispensed with. This is certainly a well settled rule of law, and it is claimed to apply to this case. We think the judgment of the District Court should be reversed, however, because of its ruling upon the law of a foreign State without proof of the law, and because of the refusal to hear evidence of the law. The counsel for defendant very ably discuss the laws of Mexico; but unless those laws were proven the courts of this country may not know what they are. They are not here published by authority. We must not be understood as deciding that the rulings of the District Court are absolutely erroneous as to what may be the law of Mexico, but that it was error to decide upon those laws without their being proved. The question of jurisdiction in this case may be regarded as settled by our opinion in No. 570. The garnishee, San Roman, was liable to Madame Serna in the amount of the Scanlan draft; and he being a citizen of Texas gave the court jurisdiction.

The judgment of the District Court is reversed and the cause remanded.

Reversed and remanded.

Opinion rendered September 15, 1873.

Hancock, West & North filed a motion for defendants in error for rehearing, which was granted.