Porcheler v. Bronson

50 Tex. 555 | Tex. | 1879

Moore, Chief Justice.

The legal effect of a judgment upon which suit is brought, whether it be a domestic or foreign judgment, is to be determined by the court, and not the jury. In the absence of an averment in the petition, of a law, custom, or procedure in the courts of the State where the judgment was rendered requiring a different construction to be given it, a foreign judgment must be interpreted and held to have the same legal effect as if it had been rendered by our own courts. (Bradshaw v. Mayfield, 18 Tex., 21.) If by the law or usage of the State from which the judgment comes it has a different force and effect from that which a similar judgment by our courts would have, like force and credit will be given to it here as it has where rendered; but, to enable the court to see that it is entitled to the credit claimed for it, the law or usage entitling it to this effect, must be averred. (Taylor, v. Runyan, 3 Clark, (Iowa,) 474.) If there is no averment of a law or usage of the State where the judgment is rendered entitling it to the legal effect asked to be given it, the petition is defective, and should be so held by the court, if excepted to. It is no answer to the demurrer to say that the existence of the law or usage which entitles the judgment to the effect claimed for it, is a question of fact, even if the evidence to prove the law should be submitted to the jury instead of to the judge, contrary to what Mr. Greenleaf says seems to be the better opinion. (1 Greenl. Ev., sec. 486; Story’s Confl. of Laws., sec. 683.) Eor as the evidence is not admissible unless its existence is averred in the petition, this concession, if made, is no answer to a demurrer to a petition seeking to give an effect to the judgment to which, in the absence of the particular law or usage, it would not be entitled.

The judgment upon which appellant’s action is brought is not for the recovery of money of appellee’s intestate, but for the foreclosure of a mortgage. In other words, it is not a personal judgment, but for the enforcement of a lien, for the satisfaction of an amount recovered in the judgment, by the sale of the property therein described. Admit that the judgment bound the defendant in his individual as well as his representative character, plainly -it does so merely to the extent of his interest in the property condemned to sale; and if it be also conceded that the facts alleged in the petition entitled the plaintiff to a personal judgment against the defendant for the debt named in the mortgage, still, beyond question, the petition contains no prayer for such a judgment. It is not, therefore, to be presumed, although the facts alleged would have warranted it, and when to do so would conflict with the plain language of the judgment entry. (United States v. Hawkins, 4 Mart., (N. S.,) 317.) Appellant, to parry the effect of this obvious defect in his petition, insists that this is not the ground upon which the court below sustained the demurrer. This may be true; and it may be, as he also insists, that this is not the precise objection to the petition presented by appellee’s special exception. But, be this as it may, unquestionably the defect in the petition, is such as may be taken advantage of by general demurrer. The judgment of the court is a general one, and sustains the general demurrer as well as the special exception. The judgment being correct, it cannot be reversed merely because the judge, if such is the fact, assigned a wrong reason for his judgment. It is the judgment of the court below which we are called upon to revise, and not the reasons given by the court in support of them.

The judgment is affirmed.

Aeeirmed.