Mathis v. Wachovia Bank & Trust Co.

583 S.W.2d 800
CourtCourt of Appeals of Texas
DecidedJune 21, 1979
Docket17327
StatusPublished
Cited by15 cases

This text of 583 S.W.2d 800 (Mathis v. Wachovia Bank & Trust Co.) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Mathis v. Wachovia Bank & Trust Co., 583 S.W.2d 800 (Tex. Ct. App. 1979).

Opinions

DOYLE, Justice.

This is an appeal from a judgment granting full faith and credit to a judgment from the State of North Carolina in favor of appellees, Wachovia Bank and Trust Company, N.A. et al. (Bank) in the amount of $30,737.78 plus interest and costs of court.

On February 25,1970, a default judgment was entered in the State of North Carolina against appellants, Patrick E. Mathis and Kathleen Schmidt Mathis (the Mathises), in the amount of $30,737.78, plus interest at the rate of six percent per annum after July 9, 1971.

In 1975 suit was filed by the Bank in Harris County, Texas. The Mathises’ attorney filed an answer for Patrick E. Mathis but not for Kathleen Schmidt Mathis. Consequently, on November 20, 1975, an interlocutory default judgment was entered against Mrs. Mathis by the Harris County court.

The Mathises’ attorney did not reply to this interlocutory judgment until after this case was called for trial in 1978, when he attempted to have the court set aside its judgment and his motion was overruled by the court.

At trial, the court granted full faith and credit to the North Carolina judgment, admitting it into evidence over the objection of the Mathises that said judgment was not properly signed or attested and therefore not entitled to full faith and credit.

[802]*802Trial was to a jury and after evidence on whether Mr. Mathis had been served in North Carolina, the following one special issue was submitted:

Do you find from a preponderance of the evidence that H. J. JOYNER of the Forsyth County Sheriff’s Office served citation on Defendant Patrick E. Mathis on January 25, 1970?
Answer: “We do” or “We do not”

Mr. Mathis objected to this issue stating there was no evidence or insufficient evidence to support submission of the issue. The court overruled the objection and the jury answered the issue, “We do”.

After the verdict, the Mathises moved for an instructed verdict and for judgment N. O. V., which motions were denied. The Mathises further moved for a new trial which was also overruled resulting in this appeal.

Compositely, the Mathises’ first four points of error complain of the trial court’s errors in admitting to full faith and credit a North Carolina judgment which shows on its face that it is not in compliance with Texas laws, which are applicable since the bank failed to plead and prove North Carolina law in accordance with rule 184a, T.R. C.P.

The general rule is that where a judgment of a state appears to be a valid final and subsisting judgment by a court of general jurisdiction, its introduction makes a prima facie case for the party seeking to enforce it. Mitchim v. Mitchim, 518 S.W.2d 362 (Tex.1975); Garman v. Reynolds, 284 S.W.2d 262 (Tex.Civ.App.—Ft. Worth 1955, writ ref’d); Moody v. First Nat. Bank of Dona Ana County, 530 S.W.2d 879 (Tex.Civ. App.—Houston [1st Dist.] 1975, writ ref’d n. r. e.). However, no such dignity has been extended by Texas courts where default judgments are involved, and “Thus jurisdiction of a court to render a default judgment may not be sustained by the judgment recitals but must appear affirmatively on the face of the record.” Country Clubs, Inc. v. U. Ward, 461 S.W.2d 651 (Tex.Civ.App.—Dallas 1970, writ ref’d n. r. e.); Jackson v. Randall, 544 S.W.2d 439 (Tex.Civ.App.—Texarkana 1976, no writ). We cannot take judicial notice of the laws of another state in the absence of a request to do so. Absent proper proof of such laws, we must presume them to be the same as the laws of Texas touching upon the matter in controversy. Harris v. Harris, 403 S.W.2d 445 (Tex.Civ.App.—Houston 1966, no writ); Rule 184a, T.R.C.P. It is undisputed that the judgment here attacked is a default judgment and that the Bank has not requested, pled nor proved North Carolina law. Therefore we must test the North Carolina judgment by the laws of Texas. The judgment is here set forth as it appears in the record.

[803]*803THIS CAUSE coming on to be heard before the undersigned Clerk of Superior Court of Forsyth County:
And it appearing to the Court from the duly verified complaint of the plaintiffs that the defendant, Twin City Wholesale Motors, Inc., on or about July 8, 1969, executed a NOTE AND SECURITY AGREEMENT payable in twenty-three monthly installments of $1,400.00 each and one final installment of $1,337.78; that the defendants have defaulted in the payment of their obligation under the contract; and that the sum of $30,737.78, with interest thereon at 6 per cent per annum after July 9, 1971, is now due and payable from the defendant, Twin City Wholesale Motors, Inc., to the plaintiffs.
And it further appearing to the Court that on or about July 8,1968, the individual defendants, Patrick E. Mathis and Kathleen Schmidt Mathis, executed a GUARANTEE guaranteeing prompt payment of the above-mentioned obligation of Twin City Wholesale Motors, Inc.; that demand has been made upon the individual defendants for the payment of the aforesaid amounts due from Twin City Wholesale Motors, Inc.; that upon such demand no payment has been forthcoming; and the plaintiffs are entitled to judgment against the individual defendants under their GUARANTEE for the payment of the sum of $30,737.78 together with interest thereon at 6 per cent per annum after July 9, 1971.
And it further appearing to the Court that pursuant to the provisions of the aforesaid NOTE AND SECURITY AGREEMENT and the provisions of the GUARANTEE that the plaintiffs are entitled to recover the sum of $30,737.78 from all of the defendants.
And it further appearing to the Court that the time for filing answer or other pleading has expired and that an ENTRY OF DEFAULT has been made by the Clerk of Superior Court of Forsyth County; and that the plaintiffs are entitled to a judgment against all of the defendants.
NOW THEREFORE, IT IS ORDERED, ADJUDGED AND DECREED, that the plaintiffs have and recover of the defendants, Twin City Wholesale Motors, Inc., Patrick E. Mathis, and Kathleen Schmidt Mathis, the sum of $30,-737.78 together with interest thereon at 6 per cent per annum after July 9, 1971. The costs of this action are taxed against the defendants.
The 25th day of February, 1970, 1:51 P.M.
/s/ Frances Storey, Assistant
Clerk of Superior Court

Then follows the certification by A. E. Blackburn, Clerk of the Superior Court, to the effect that the annexed copies of the judgment signed by Frances Storey, Assistant Clerk of the Superior Court, are true copies of the judgment, and also a certification by A. E. Blackburn that “Charles T.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Johnson v. Structured Asset Services, LLC
148 S.W.3d 711 (Court of Appeals of Texas, 2004)
Graco Robotics, Inc. v. Oaklawn Bank
914 S.W.2d 633 (Court of Appeals of Texas, 1996)
Burns v. Resolution Trust Corp.
880 S.W.2d 149 (Court of Appeals of Texas, 1994)
Minuteman Press International, Inc. v. Sparks
782 S.W.2d 339 (Court of Appeals of Texas, 1989)
Fender v. Delta Mud & Drilling Co.
697 S.W.2d 655 (Court of Appeals of Texas, 1985)
McFadden v. Farmers & Merchants Bank of Long Beach
689 S.W.2d 330 (Court of Appeals of Texas, 1985)
Weakley v. Chandlers Furniture Co.
689 S.W.2d 339 (Court of Appeals of Texas, 1985)
Cal Growers, Inc. v. Palmer Warehouse & Transfer Co.
687 S.W.2d 384 (Court of Appeals of Texas, 1985)
Medical Administrators, Inc. v. Koger Properties, Inc.
668 S.W.2d 719 (Court of Appeals of Texas, 1983)
Fuhrer v. Rinyu
647 S.W.2d 315 (Court of Appeals of Texas, 1982)
Interamerican Lambs Wool Products, Ltd. v. Doxsee Food Corp.
642 S.W.2d 823 (Court of Appeals of Texas, 1982)
Reiff v. McGuire
616 S.W.2d 349 (Court of Appeals of Texas, 1981)
Mathis v. Wachovia Bank & Trust Co.
583 S.W.2d 800 (Court of Appeals of Texas, 1979)

Cite This Page — Counsel Stack

Bluebook (online)
583 S.W.2d 800, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mathis-v-wachovia-bank-trust-co-texapp-1979.