Allen v. Great Liberty Life Insurance Company

ON APPELLEE’S MOTION FOR REHEARING

As a general rule a judgment is admissible against a stranger thereto for the purpose of proving the mere existence of the judgment and the legal consequences resulting therefrom. McCamant v. Roberts, 1 S.W. 260 (Tex.1886). As stated, however, in Davis v. Zapata Petroleum Corporation, 351 S.W.2d 916 (Tex.Civ. App.—El Paso 1961, writ ref, n. r. e.), a judgment is not admissible:

“. • . for the purpose of showing what matters were adjudicated except where the parties and the subject matter in each suit are the same, or where the matter determined was of a public nature (in rem) and from public considerations should be considered binding upon all persons.”

Great Liberty filed suit against C & S Land and Development Company and other defendants in Arizona seeking recovery on the $65,000 and $60,000 notes as well as foreclosure of its “collateral assignment of beneficial interest” covering certain Arizona property. Neither George L. Allen nor Norma F. Allen were parties to that suit.

We think that part of the Arizona judgment, wherein the court ordered and decreed that judgment be entered against Great Liberty and in favor of C & S Land and Development Company and the other defendants, was admissible to show the existence of the judgment and its legal consequences. We do not think the finding of fact by the court, included within the judgment, that Dodd had no right or authority to act on behalf of C & S was admissible.

Great Liberty’s theory of recovery was that the release of the $60,000 Allen note and deed of trust was not fair to the corporation and was not free from fraud. The record clearly reflects that Great Liberty attempted to show the transaction was unfair and fraudulent by showing that Dodd had no authority to execute the instruments and, therefore, the C & S notes were of no value.

Great Liberty also contends that defendants failed to properly object to the introduction of the Arizona court’s findings of fact. We disagree. The objection was sufficiently specific and expressly chai-*252lenged the admissibility of the court’s findings of fact.

Great Liberty further argues there is no showing of reversible error even if the findings of fact were inadmissible and assuming proper objection. We cannot agree with this contention. The introduction of the finding of fact by the Arizona court that Dodd had no authority to act on behalf of C & S was highly prejudicial. There can be no doubt that such inadmissible finding induced the jury in this case to reach the same conclusion.

Great Liberty says in the instant case “the record reflects no importance” was attached to the findings of the Arizona Court in support of the judgment. We disagree.

After defendants’ objection was overruled the findings of fact were read to the jury. In his closing argument Great Liberty’s attorney stated:

“Truth of the matter is, he never had anything to begin with, there never was anything because he got out there and found Jay Dodd didn’t even have authority to execute those instruments on behalf of C & S Land Development Company, but did George Allen do anything to find out about it? Here is the maker of the note, C & S Land Development Company and Jay Dodd, but he didn’t do a thing to find out about it,”

The attorney further argued:

“What did Great Liberty Life Insurance Company get for the $60,000.00 George Allen note? They got a piece of paper there, an order by the Court in Arizona saying ‘you ain’t got nothing, not nothing.’ In fact, the fellow that signed it didn’t even have authority to execute it on behalf of the folks he purported to sign it for.”

While discussing Special Issue Number 1, Great Liberty’s attorney told the jury:

“You can answer both of those issues that it was not entirely and inherently fair, that it was not executed free from fraud and with good faith, even if you believe George Allen didn’t have anything to do with it, even if you believe Jay Dodd is the cause . . .”

We find nothing in the record to cause us to change the judgment heretofore entered. The motion for rehearing is overruled.