Hodge v. International Registry Co.

This action is brought upon a judgment alleged to have been recovered against the defendant in the district court of Dallas county, state of Texas. This judgment is assailed upon the ground that the sheriff’s return does not show whether service of the writ of citation was made in or out of the state of Texas, nor whether a certified copy of plaintiff’s petition accompanied the citation, as required by the statutes of Texas, nor whether the person served was in fact the local agent of the defendant corporation. It appears from an inspection of the judgment offered in evidence that the sheriff made return that one “J. M. Harris, state agent,” was served, without disclosing where the service was made, or what is meant by the words “state agent.” It does not appear that a certified copy of the plaintiff’s peti

“While it must he conceded that, in order to give the court jurisdiction over the persons o£ the defendants, all the steps pointed out by the statute to effect constructive service on nonresidents were necessary, yet it does not follow that the evidence that .the steps were taken must appear in the record unless indeed the statute expressly or by • implication requires it. * * * Every presumption not inconsistent with the record is to be indulged in in favor of its jurisdiction [citing authorities]. It is to be presumed that the court before making its decree took care to see that its order for constructive service, on which its right to make the decree depended, has been obeyed.”

The burden of establishing the fact that the court had not acquired jurisdiction of the person is upon the defendant, upon proof of the most satisfactory character. Ferguson v. Crawford, 86 N. Y. 609 , 611. . It was not shown that the laws of Texas require that the judgment shall disclose that all the steps required under its laws to effect service on a nonresident must appear in the record of the judgment; hence under the authorities it must be presumed that the court, before making its decree, took care to see that proper service had been effected.

The learned counsel for the defendant relies upon the case of G., H. & S. A. Ry. v. Gage, 63 Tex. 568 , as authority for the proposition that, where the petition and writ failed to designate the local agent, no action should be taken in the determination of the cause until proof is made that the person served was really the local agent of the corporation, acting for it, and that the return of the officer is not conclusive as to who the local agent was. It is to be observed that in the case cited the defendant did not tender proof that the person served was not the local agent of the corporation, and, although it was stated that the better practice is to have it appear who the local agent was, the court refused to quash the writ because of the absence of affirmative proof as to the agency of the person served. The effect of that decision, as I read it, is that the proceedings disclosed in the sheriff's return were at most an irregularity, and that the return was not conclusive; that is, it was open to successful attack upon proof that the person actually served was not the agent of the corporation. Such seems to be the trend of

The cases relied upon by the defendant, of which Matter of Law, 56 App. Div. 454 , 67 N. Y. Supp. 857 , is typical, to the effect that it is incumbent upon the person relying upon a judgment of a foreign court to show that all the requisite steps were taken to confer jurisdiction, have reference to courts of inferior jurisdiction. This rule does not pertain to judgments rendered out of superior courts of general jurisdiction, and hence has no application to the case at bar. Judgment is directed in favor of the plaintiff.

Judgment for plaintiff.