No. 2793 | Tex. | Oct 24, 1890
This suit was commenced by appellee
At the October Term, 1888, an order was entered at the instance of plaintiff dismissing the cause.
At the same term of the court an order was made that “said cause be reinstated on the docket upon the condition of plaintiff paying all costs; accrued in said cause.”
Afterwards judgment for the amount of his demand was rendered in favor of plaintiff.
The judgment upon which the suit was brought was properly described in the petition, and the court did not err in overruling an exception to the petition taken on the ground that no copy of the record was attached as an exhibit to it.
Appellant contends that the order reinstating the" cause was conditioned upon the payment of the costs at the term at which the order was made, and that because the costs were not so paid a motion made by him at the ensuing term to strike the cause from the docket ought to have prevailed. The. order did not direct when the costs were to be paid, and it amounted to. no more than to tax the plaintiff with the payment of the costs. It reinstated the cause for all purposes. Penn v. Railway, 76 Tex., 380" court="Tex." date_filed="1890-03-04" href="https://app.midpage.ai/document/fenn-v-gulf-colorado--santa-fe-railway-co-4896527?utm_source=webapp" opinion_id="4896527">76 Texas, 380.
The defendant contended that he was not served with notice of the. Kentucky suit, and that the court rendering the judgment never acquired jurisdiction over him.
The plaintiff introduced a duly certified copy of the record showing-proper service.
Upon that issue and that of the identity of the person summoned in that suit with the defendant in the one on trial, the plaintiff introduced the deposition of the officer who executed the process. The witness in reply to interrogatories propounded by plaintiff testified: “I have known him (meaning defendant) about eighteen years, and had very friendly acquaintance with him.”
In a cross-interrogatory embracing a large number of questions the-following questions to said witness were included: “What was the personal appearance of the man you served as R. D. Hall? Wrhat is the personal appearance of the defendant?”
The witness answered: “His personal appearance (referring to the man he served) was a man of medium height, dark complexion, and long dark whiskers.”
The defendant moved to suppress the deposition because no answer was made to the question, “ What is the personal appearance of the defendant?”
The defendant was before the jury in person and testified. The witness described the person he served in the Kentucky suit as the defendant in the suit, and doubtless intended the description given of the person served
If the defendants description did not compare with that given of the-man served, he had, as he was in the presence of the jury, the advantage of it as fully as he could have had had the witness undertaken to give a full description of him.
It is complained that the court erred in admitting in evidence the certified copy of the record in the Kentucky court because plaintiff's petition in this cause contained no allegation “that the process in the Kentucky suit was in the form and the service in accordancé with the laws of the State of Kentucky.”
The court heard evidence upon the issue as to -whether or not the Kentucky court had jurisdiction, and the issue was determined in favor of the jurisdiction.
In the case of Norwood v. Cobb, 24 Texas, 555, it was said by this court, speaking of the judgment of a sister State, “ If the court had jurisdiction over the person of the defendant the judgment imports absolute verity and precludes all further examination.”
It is also insisted that the court erred in allowing plaintiff 6 per cent interest on his judgment, there having been no evidence offered that any interest on judgments is allowed by the laws of Kentucky.
The judgment sued upon expressed upon its face that it bore interest-at the rate of 6 per cent per annum.
We think that the question of jurisdiction being in favor of the judgment, it settles these questions against the contention of appellant when the mandate of the Constitution of the United States that “ Full faith and credit shall be given in each State to the public acts, records, and judicial proceedings of every other State ” is observed.
We find no error in the proceedings, and the judgment is affirmed.
Affirmed.
Delivered October 24, 1890.