Broderick v. Pardue

BOBBITT, Justice.

Joseph A. Broderick, in his capacity as superintendent of banks of the state of New York, in charge of the Bank of United States, in liquidation, same being a state banking corporation, incorporated under the laws of the state of New York, and having its domicile in said state, as plaintiff, filed this suit against Howard N. .Pardue, as defendant, on October 16, 1934, in the justice court of Bexar county, Tex., said defendant being a resident citizen of Bexar county.

Plaintiff alleged that on December 11, 1930, the defendant was a stockholder in said bank, being the owner of five shares of stock of the par value of $25 per share, and aggregating $125; that on December 11, 1930, said bank closed its doors, and its assets placed in the hands of said supei-in-tendent of banks for liquidation; that on July 1, 1932, said superintendent levied a 100 per cent, stock assessment against all stockholders, including an assessment of $125 against the defendant, and that this assessment became due and payable on August 8, 1932. The plaintiff prayed judgment against the defendant for said $125, with interest thereon from August 8, 1932, together with costs.

Both parties filed written pleadings in the justice court, and these same pleadings constituted the pleadings of the parties upon the trial on appeal to the county court.

The suit not having been filed within two-years after August 8, 1932, the date on which the assessment became due and payable (if at all), the defendant specially pleaded the two-year statute of limitations under the laws of the state of Texas (Vernon’s Ann.Civ.St. art. 5526), in bar of the plaintiff’s demand.

The case was tried in the justice court on November 20, 1934, and resulted in a judgment in favor of the defendant, from which judgment the plaintiff appealed to the county court at law No. 1 of Bexar county, Tex., and the .case was there tried before the court, without a jury, on the “same written pleadings” as were filed in the justice court, with the sole exception that George W. Egbert, as superintendent of hanks of the state of New York, who had succeeded Broderick, was there substituted as the plaintiff in the place and stead of the original plaintiff. The trial in the county court was had on June 5, 1935, and the court took the matter under advisement, and on June 25, 1935, rendered judgment in favor of the defendant; from which judgment the plaintiff has perfected his appeal to this court.

It is clear that more than two years had elapsed from the date of the accrual of plaintiff’s claim and prior to the date he filed this suit.

If the two-year statute of limitation of the state of Texas, as urged by the defendant, applies in this, case, then, of course, plaintiff’s cause of action is barred. If, on the other hand, the two-year statute of limitation generally prescribed in the state of Texas, as barring such claims, is not applicable, but that the six-year statute of limitation prescribed by the state of New York (Civil Practice Act N.Y. § 48), relating to such claims, is applicable, and if under the record before us plaintiff complied with 'the law of this state in pleading and proving the existence and provisions of such foreign statute as facts, in the trial of this case, then the claim is not barred, and plaintiff is entitled to recover, and the judgment of the trial court should be reversed.

It seems clear to us, therefore, that there are two material questions presented in this appeal:

First, whether the two-year statute of limitation under the laws of the state of Texas applies, or whether the six-year statute of limitation of the state of New York should be given effect.

Second, if such statutes of the state of New York apply, then under the record here presented did plaintiff comply with the law and the requirement to both “plead and prove” the existence and provisions of such New York statute of limitation. In other words, even if the New York statutes apply, under the particular facts and circumstances of this case, such foreign statutes must in fact be pleaded and then proved, as other facts, and the failure, either by proper pleading or proof, to comply with such rule, is fatal.

Defendant, Howard N. Pardue, is a citizen and a resident of Bexar county, Tex., and has been such at all times. He has never lived in the state of New York.

It 'seems to us that the general rule, and the one well established in this state, that the law of the lex fori governs in such a case as here, and that it should be applied in this instance. Articles 5542, 5543, R.S. 1925; Gautier v. Franklin, 1 Tex. 732; Carrigan v. Semple, 72 Tex. 306, 12 S.W. 178; Washington Life Ins. Company v. Gooding, 19 Tex.Civ.App. 490, 49 S.W. 123; Cate v. Perry (Tex.Civ.App.) 11 S. W. (2d) 352; Atchison, T. & S. F. Railway Company v. Mills, 53 Tex.Civ.App. 359, 116 S.W. 852; Home Insurance Company v. Dick (Tex.Com.App.) 15 S.W.(2d) 1028; 28 Tex.Jur. p. 92; Ross v. Kansas City S. R. Co., 34 Tex.Civ.App. 586, 79 S.W. 626.

We are not unmindful of the contention made by plaintiff to the effect that, where a right is created by statute, and which right does not exist at common law, a distinction may arise or exist in the enforcement of such right in a foreign jurisdiction. That is, plaintiff asserts that where a statute confers a new right which by the terms of the act creating same is enforceable by suit only within a given period of time, the period allowed for its enforcement is a constituent part of the liability intended to be created and of the right intended to be conferred; that the period prescribed for bringing suit in such case is not like an ordinary statute of limitation which merely affects the remedy; that, if the courts of another state refuse to permit the cause of action to be sued upon or judgment taken thereon during a part of the period limited by the foreign law, then to that extent they refuse to give effect to the law of the foreign state, and by so doing impair the right intended to be created. Brunswick Terminal Co. v. National Bank of Baltimore (C.C.A.) 99 F. 635, 48 L.R.A 625, writ of certiorari refused 178 U.S. 611, 20 S.Ct. 1029, 44 L. Ed. 1215; Northern Pac. Ry. Co. v. Crowell et al. (D.C.) 245 F. 668; Richards, State Supt. of Banks, v. Carpenter (C.C.A.) 261 F. 724; Bernheimer v. Converse, 206 U.S. 516, 27 S.Ct. 755, 51 L.Ed. 1163; Converse v. Hamilton, 224 U.S. 243, 32 S.Ct. 415, 56 L.Ed. 749, Ann.Cas.1913D, 1292; Theroux v. Northern Pacific Railroad Co. (C.C.A.) 64 F. 84; Negaubauer v. Great Northern Railroad Co., 92 Minn. 184, 99 N.W. 620, 104 Am.St.Rep. 674, 2 Ann.Cas. 150; Christilly' v. Warner, 87 Conn. 461, 88 A. 711, 51 L.R.A.(N.S.) 415; Keep v. National Tube Co. (C.C.) 154 F. 121.

We do not believe that such rule applies under the well-established decisions of the Supreme Court of this state, and as applied to the facts of the case as here presented.

• The rule in Texas is that, if such foreign statute as here attempted to be applied, “limits or restricts” the time within which a claim may be barred under the laws of Texas, it would be recognized as fair to a citizen of Texas, under the declared public policy and the law prescribing same, and would be given effect in Texas’ courts. If, however, such foreign statute has the effect of “enlarging or extending” the time prescribed by the laws of Texas for the bringing of a suit to enforce a claim, such as here attempted, then it will not be recognized or enforced by the courts of this State. Articles 535, 5526, R.S.1925; Ruling Case Law, vol. 17, p. 700; Rose v. First State Bank (Tex.Civ.App.) 38 S.W. (2d) 863; Id., 122 Tex. 298, 59 S.W. (2d) 810; Shaw v. Bush (Tex.Civ.App.) 61 S.W. (2d) 526; Miller v. Lane, 160 Cal. 90, 116 P. 58; Great Western Teleg. Co. v. Purdy, 162 U.S. 329, 16 S.Ct. 810, 40 L. Ed. 986; Irvine v. Elliott (D.C.) 203 F. 82; Home Insurance Company v. Dick, supra.

As a matter of fact, it seems to us that the contention made by appellant is sound, and would be applied under laws and decisions of'the courts of Texas, if plaintiff and defendant had both resided in the state of New York for the length of time prescribed by the statute of New York for the bringing of such suit to' enforce the claim and the defendant had then moved to Texas and plaintiff was seeking, in the Texas courts, to proceed for the collection of such claim, and if the period of limitation existing and asserted under the statute of New York in fact limited or restricted the rights of the defendant under the laws of Texas. The fact here is, however, that the defendant never lived in the state of New York, and that the period of time allowed by the New York statute within which suit might be brought is six years, while in the state of Texas it- is two years; and plaintiff’s effort under the provisions of such New York statute is clearly an effort to “enlarge or extend” the rights of plaintiff against the defendant, in the courts of our state and contrary to the laws of Texas, and contrary to the decisions of the, Supreme Court of this State, and such effort is unenforceable.

If, however, we may be mistaken in our opinion as above stated, it seems clear to us that the judgment of the trial court in this cause must be affirmed, for the reason that the record clearly shows that plaintiff failed to “plead” the provisions of the particular statutes of the state of New York here sought to be applied and enforced. Though it is elementary, and as above suggested, that the provisions of a foreign statute must be both properly pleaded and proved as a fact in the courts of our state, as any other fact, and the failure of the party so to do is fatal to his cause of action, plaintiff here asserts that, this suit having originated in the justice court, where oral pleadings are sufficient, arid the cause having been appealed to and tried in the county court de novo, this court as well as the county court should presume that plaintiff had met this test because of the law of our state authorizing oral pleadings in the justice court. If the record before us were silent on this question, there would be some merit to plaintiff’s contentions, and it may be in such case that the courts should indulge such presumption. In view of the record before us and findings of fact, however, made by the county court in the judgment here entered, that this case was therein tried on the “same written pleadings as were filed in the justice court,” plaintiff’s contention must be overruled.

For the reasons stated, it is our opinion that the court below entered the proper judgment in this cause, and the action of such court is therefore in all things affirmed.