
    BANCO MINERO v. ROSS et al.
    (No. 2328.)
    (Supreme Court of Texas.
    Jan. 20, 1915.)
    1. Appearance (§§ 8, 19) — Plea to Jurisdiction — Effect.
    Where defendant, a Mexican corporation, when sued in Texas by attachment, filed a plea to the jurisdiction, it thereby appeared and subjected its person to the court’s jurisdiction.
    [Ed. Note. — For other eases, see Appearance, Cent. Dig. §§ 23-41, 79-82, 84-90; Dec. Dig. §§ 8, 19.]
    2. Courts (§ 17) — Jurisdiction—Person and Subject-Matter.
    Where, in a suit against a Mexican corporation for conversion of certain funds, the Texas court acquired jurisdiction of defendant’s person by its appearance to attack the court’s jurisdiction, it also acquired jurisdiction of the subject-matter.
    [Ed. Note. — For other cases, see -Courts, Cent, Dig. §§ 46-50, 52; Dec. Dig. § 17.]
    3. Courts (§ 7) — Jurisdiction—Transitory Actions — Conversion.
    An action against a Mexican bank for conversion of a deposit owing to plaintiff was transitory, and could be prosecuted in any court properly obtaining jurisdiction of defendant’s person, and this notwithstanding the money, at the time of its alleged conversion, was in Mexico and the suit involved an inquiry concerning a contract for the sale of certain Mexican land.
    [Ed. Note. — For other cases, see Courts, Cent. Dig. §§ 14, 16, 22-31; Dec. Dig. § 7.]
    4. Specific Performance (§ 131) — Judgment —Effect.
    Where a suit was instituted in Mexico to compel plaintiff to specifically perform a contract to purchase certain land from T. and a bank in which a portion of the purchase price had been deposited to plaintiff’s credit was not a party to such suit, a judgment against plaintiff directing specific performance was not effectual to confer any authority on the bank to pay over the deposit to T. or to create any obligation on it to do so.
    [Ed. Note. — For other cases, see Specific Performance, Cent. Dig. §§ 426-435; Dec. Dig. § 131.]
    5. Judgment (§ 831) — Judgment of Foreign Court — Want of Jurisdiction — Effect.
    A judgment of a foreign court which it was without jurisdiction to render is not entitled to credit anywhere.
    [Ed. Note. — For other cases, see Judgment, Cent. Dig. §§ 1519-1522; Dec. Dig. § 831.]
    6. Trial (§ 136) — Validity of Foreign Daw —Question of Fact.
    Whether an order of a Mexican judge, directing a bank to pay over to T., in whose favor he had rendered a personal judgment, certain funds on deposit belonging to a judgment debtor, was valid according to the Mexican law, and had, under such law, the legal effect to confer on the court jurisdiction of the deposit and authority to require payment, was a question of fact, and determinable as such in a subsequent suit by the judgment debtor against the bank for conversion of the deposit.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 318, 320, 321, 323-327; Dec. Dig. § 136.]
    7. Evidence (§ 571) — Foreign Law — Conclusiveness.
    Where, in order to prove the law of Mexico on a certain fact, certain provisions of the Mexican Civil Code were introduced, together with the testimony of an alleged expert witness as to the proper construction thereof, the trial judge was not obliged to accept the witness’ construction, but was entitled to construe the provision» himself.
    [Ed. Note. — For other eases, see Evidence, Cent. Dig. §§ 2395-2398; Dec. Dig. § 571.]
    8. Specific Performance (§ 102) —Nature of Action — Personal Liability.
    Where T. sued plaintiffs in the Mexican courts to enforce specific performance of their contract to purchase certain land, requiring them to pay $40,000 on an event which never happened, but which they were required to and did deposit to their individual credit in a Mexican bank, such action, notwithstanding the deposit, was purely in personam.
    [Ed. Note. — For other cases, see Specific Per.formance, Cent. Dig. §§ 318, 3lé; Dec. Dig. § 102.]
    9. Judgment (§ 17) — Service by Publioa- • tion — Personal Liability.
    A judgment rendered on service by publication in an action in personam is void.
    [Ed. Note. — For other cases, see Judgment, Cent. Dig. §§ 25-33; Dec. Dig. § 17.]
    10. Judgment (§ 831) — Foreign Judgment— Conclusiveness.
    In order that a foreign judgment against a citizen of the United States will be accorded credit in the courts of Texas, it must be shown to have been rendered by a competent court having jurisdiction of the parties and the cause, and that an opportunity for a full and fair trial by regular proceedings according to the course of a system of civilized jurisprudence, likely to secure an impartial administration of justice, has been had, with nothing to show either prejudice in the court or in the legal system or fraud in the procurement of the judgment, and also that there is no special reason why the comity of the United States should not give the judgment effect.
    [Ed. Note. — For other eases, see Judgment, Cent. Dig. §§ 1519-1522; Dec. Dig. § 831.]
    11. Judgment (§ 831) — Foreign Judgment-Credit — “Full and Fair Trial.”
    The rule that, in order that a foreign judgment against a citizen shall be accorded credit in the courts of the United States, there must have been an opportunity for a full and fair trial, means not a summary proceeding, though sanctioned by the law of the forum, but an opportunity to be heard on the proof, where it is apparent that the cause involves questions of fact, and to have it considered by an unprejudiced court.
    [Ed. Note. — For other cases, see Judgment, Cent. Dig. §§ 1519-1522; Dec. Dig. § 831.]
    12. Judgment (§ 831) — Foreign Judgment-Credit — Fair Trial.
    Where plaintiffs were sued in Mexico for specific performance of a contract to purchase certain land from T., and pleaded what would have constituted a good defense — to wit, that T. was "entirely unable to convey the land which his agents had pointed out to plaintiffs as the subject-matter of the contract — but plaintiffs were denied the right to present such defense, though they seasonably offered to do so, and were denied an appeal from a judgment against them because of the omission to affix a stamp to the document of appeal, the judgment was not one obtained after a full and fair trial, and was not entitled to credit in the courts of the United States.
    [Ed. Note. — For other cases, see Judgment, Cent. Dig. §§ 1519-1522; Dec. Dig. § 831.]
    Error to Court of Civil Appeals of Fourth Supreme Judicial District.
    Action by J. O'. Ross and H. Masterson against the Banco Minero. Judgment for plaintiffs, and defendant brings error.
    Affirmed.
    T. A. Falvey, Waters Davis, and J. M. Goggin, all of El Paso, for plaintiff in error. Beall & Kemp, of El Paso, R. H. Ward, of San Antonio, and Baker, Botts, Parker & Garwood, of Houston, for defendants in error.
    
      
      For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes
    
   PHILLIPS, J.

Tile source of this suit was a contract entered into on May 8, 1907, between A. H. Kraft, John Fulkerson, and Don Alberto Terrazas, on the one hand, and J. O. Ross and H. Masterson, citizens of this state, the defendants in error, on the other, for the sale to the latter by Terrazas, a citizen of the republic of Mexico, of a large body of Mexican land, comprising about 125,000 acres, and known as the Carillo grant, at the price of $1 gold per acre, $10,-000 gold to be paid Terrazas by May 12th, and $40,000 gold to be deposited by Ross and Masterson to their own credit in the Banco Minero, a bank in Chihuahua, Mexico, by May SOth, to be paid over by it, on their order, to Terrazas upon the completion of a survey, the approval of the title, and the tender of a proper deed, notes to be given for the balance of the purchase price. In the negotiation preceding the execution of the contract the land had been represented to Ross' and Masterson as capable of yielding an average cut of 4,500 feet of timber to the acre, and as being well watered and good grazing land, and suitable for pasturage purposes. They had caused to be inspected a tract pointed out by Terrazas’ representa-tiveso as the Carillo grant, and, having determined to make the purchase, entered into the contract as stated, under an express guaranty therein provided that the land contracted for was the identical land of which their inspection had been made. The $10,000 payment was duly made to Terrazas, as stipulated, as was the $40,000 deposit in the Banco Minero, the bank executing its receipt to Ross and Masterson, expressing that the deposit was held “subject to payment Alberto Terrazas when transfer land is made.”

Thereafter, about the time the survey was completed, Ross and Masterson were advised by an anonymous letter that Terrazas and his associates in the contract were not selling them the land pointed out to and inspected by their representatives; that is, that the land inspected was not in the Carillo., grant. This, upon further investigation, was ascertained to be true. Subsequently, they met Terrazas at Chihuahua and announced their readiness to close the purchase if he could deliver the land they had agreed to buy. Terrazas then admitted that he could not deliver the land that had been inspected, as he did not own it, and there was nothing to do but cancel the matter and return the $50,000, no part of which, however, has been returned.

Following a demand on January 25, 1908, for the repayment of the $40,000 deposited with it under the contract, which was refused, Ross and Masterson, on October 27, 190S, instituted this suit against the Banco Minero in the district court of El Paso county for the conversion of the deposit, suing out a garnishment at the same time against the Guaranty Trust & Banking Company, domiciled in that county, which under answer admitted an indebtedness to the defendant of $6,157.40, and that the latter was the owner of 1,057 shares of its capital stock of the value of $150,700.

Before passing to the proceedings and judgment of. the trial court, it is appropriate to state here, since it develops the principal question in the case, that on August 14, 1908, Terrazas, for himself and Lauro Carillo, Kraft, and Fulkerson, instituted a suit against Ross and Masterson in the Second civil court of Iturbide district, in the city and state of Chihuahua, to enforce the specific performance of the contract referred to. The Banco Minero was not a party to the suit or the judgment rendered, did not appear, and was served with no character of process prior to the judgment; nor was the $40,000 on deposit with it to the credit of Ross and Masterson in any wise impounded or subjected to the custody of the court prior to the judgment. As to Ross the only mode of service was by publication. He did not appear, and a default judgment was taken against him. Masterson appeared by attorney and attempted to defend against the action. Judgment was rendered against both Ross and Masterson, decreeing that they ■should specifically perform the contract. Subsequently the judge issued an order to the Banco Minero, as follows:

‘T address you the present note, in order that you be pleased to comply with my ruling of the 22d of this month in the execution of the judgment to turn over to Licenciate Jose A. Tanez, attorney for Mr. Terrazas, the aforesaid $40,-000.00 American gold, to which I make reference. Liberty and Constitution, Chihuahua, March 29, 1909. [Signed] C. Gorostieta, Rubrics. Addressed to the manager of Banco Min-nero of Chihuahua, present.”

On the following day, March 30, 1909, the Banco Minero, pursuant to this order, and under the instructions of Terrazas’ attorney in the Mexican suit, without resistance or notice to Ross and Masterson, transferred the $40,000 to the credit of Terrazas, to .whom it was paid upon his checks.

The Banco Minero, in the present case, duly interposed a plea to the jurisdiction of the court, upon the ground that it was a foreign corporation, domiciled in a foreign country, and neither doing business nor having any office or agent within this state, and that the cause of action arose wholly within the state of Chihuahua, in the re* public of Mexico, was local in its nature. and cognizable only by tbe courts of Chihuahua. It furthermore pleaded the judgment in the Mexico suit as an adjudication of the controversy, and its payment of the money involved to Terrazas under the order of the court rendering that judgment and as a part of the judgment, which payment it alleged it was compelled' to make under the laws of the state of Chihuahua, as a bar to any recovery.

The trial before the court resulted in a judgment for the plaintiffs against the Banco Minero for $10,000, with 6 per cent, interest from January 30, 1908.

The filing by the Banco Minero of its plea to the jurisdiction constituted an appearance, and subjected its person to the jurisdiction of the court. York v. State, 73 Tex. 651, 11 S. W. 869.

It is equally clear that the district court of El Paso county, having acquired judisdiction of the person of the defendant, had jurisdiction of the subject-matter of the suit.

The action was one for the conversion of personal property — the $40,000 deposited to the credit of Ross and Masterson in the defendant bank, which, as alleged, it had refused to repay after demand, and had appropriated to its own use. It was accordingly transitory in its nature, and could be prosecuted in any court properly obtaining jurisdiction of the person of the defendant. Stone v. United States, 167 U. S. 178, 17 Sup. Ct. 778, 42 L. Ed. 127: 2 Wharton on Conflict of Laws, § 478a. That the money at the time of its alleged conversion was within another jurisdiction does not affect the question. Nor was the essential nature of the suit changed by the fact that it involved an inquiry into the transaction between the plaintiffs and Terrazas respecting the Mexican land. This was but incident to the issue, and. was involved only to the extent of determining whether the appropriation of the deposit was wrongful. In no other way did the suit touch the land, and in no manner did it seek to affect the title to the land.

Prom the findings of fact of the Court of Civil Appeals, which have been summarized in the statement of the case, it is evident that Terrazas had not a vestige of right to the $40,000 paid him by the plaintiff in error bank, and the appropriation of the money for his benefit, whether according to the Mexican law or not, was but a naked confiscation. The bank held the money for Ross and Masterson, in recognition of their ownership, and under the express condition that it was to be paid Terrazas Only upon his compliance with the land contract. It is liable for a payment in breach of that condition, unless: (1) Its action is protected by the Mexican law; and (2) was in obedience to a judgment valid under that law, and entitled to be so recognized by the courts of this country. Its defense, therefore, rests primarily upon the validity and effect of the order of the judge of the Mexican court, under which it made the payment. If that order was void, its action has no shield of protection, though the judgment of the Mexican court, as to Ross and Masterson, its defendant parties, be treated as valid. This is necessarily true, since certainly the Mexican court had no jurisdiction of the money unless the order was effectual to confer it. In a word, the power of the Mexican judge to direct the payment and the duty of the bank to make it inhered, if at all, in the validity and legal effect of this order. Its validity under the Mexican law, and its legal effect according to that law, if valid, is revealed at once, therefore, as the main question in the case. A judgment valid under the Mexican law and entitled to credit by the courts of this country was, of course, necessary' to support the order of the judge; but, as the payment by the bank cannot be held lawful if the order was void, the validity of the judgment is a secondary question, and becomes important only upon a determination that the order was valid and had the force of conferring upon the Mexican court jurisdiction of the money.

It is plain that the judgment itself was not effectual to confer any authority upon the bank to pay the money to Terrazas, or to create any obligation for it to do so. By its terms it was operative only against Ross and Masterson. It cannot be accorded any effect as against the bank; it being not even a party to the suit. By no character of seizure or process had the money in the hands of the bank been brought within the custody of the court at the time of the rendition of the judgment, as has been already noted. Any attempt of a court by such a judgment to thus dispose of personal property of a foreigner or citizen, not within its custody, but in the hands of a third person not amenable to the decree, because not a party to the proceeding, involving, ' as it would, the exercise of 'a usurped jurisdiction, is wholly futile. It is,' upon its face, contrary to the usages of law of civilized countries, and no court could be said to rest under any requirement to give it credit.

Jurisdiction is the main essential of every judgment, and a judgment of a foreign court which it was without the power to render has no currency anywhere.

We do not understand the bank to here contend that the judgment of the Mexican court, of itself, operated.as authority for its action in making the payment. Its position, very earnestly pressed, is that, though it was not a party to that suit, and the money was not through any other process " within the court’s custody, this order of .the judge, issued after the rendition of the judgment, was a valid process according to the Mexican law, and, under that law, as effectual to impound the money and confer jurisdiction in the court to direct its payment as any process appropriate for a like purpose known to our procedure; that in making the payment it but yielded obedience to a lawful mandate of the superior civil authority of the government where the money was and of which it was a citizen, which it was compelled to obey under penalty, and should therefore be protected in the payment. If it be conceded that the judgment is valid and entitled to credit, and therefore afforded lawful warrant for the order, and it be true that such was the effect of the order, there would be much force in this position. Such a case would assume a valid judgment, entitled to credit in our courts, and jurisdiction in the Mexican court of the person of the bank and the money, and authority to require the payment by the bank, according to the Mexican law.

But whether the order of the judge was valid according to the Mexican .law, and had, under that law, the legal effect to thus confer upon the court jurisdiction of the money and authority to require the payment which was made, was a question of fact. That such was its legal effect rests upon the testimony of one expert witness, who testified that, according to certain provisions of the Mexican Civil Code, the order was a valid process which it was the duty of the bank to obey under penalty. No judicial authority of any character that such was the effect of the order appears to have been introduced.

The provisions of the Code and the testimony of this witness comprise all the evidence upon the subject. Though embodied in a conclusion of law, the trial judge disregarding the testimony of the expert witness, found that the Mexican court had no jurisdiction of the money and that this order was void. The provisions of the Mexican Civil Code upon which the expert witness predicated his testimony were in evidence and before the trial judge. It was within •Uiis province to construe them for himself. He was not obliged to accept the construction placed upon them by the witness. It cannot be said, as a' matter of law, that his construction was wrong, or that his finding was erroneous. The burden of making this proof was upon the bank. We have examined the provisions of the Code as found in the record, upon which this witness based his testimony respecting the legal effect of the order of the judge, and they do not, in our opinion, justify any construction which would give this order the force of a writ effectual to impound this money or confer upon the court any authority to dispose of it.

The case might well be rested here, but it is probably due that we pass upon the question of the validity of the judgment rendered in the Mexican suit and its right to recognition in our courts. The suit was one to enforce against Ross and Masterson, in favor of Terrazas and his associates, the specific performance of the contract entered into for the sale of the Mexican land. The obligation of Ross and Masterson under that contract was a purely personal obligation; namely, to pay in cash a certain amount of the stipulated purchase price of the land and execute their vendor’s lien notes for the balance. The character of the obligation which the suit was brought to enforce and the relief sought necessarily determined the nature of the action. Any judgment rendered against Ross and Masterson on the contract could, be operative only against them personally, and the judgment actually rendered had no other purport or effect As against them, it did not propose to affect any property within the jurisdiction of the court That according to its terms it involved an obligation on their part to make a further cash payment to Terrazas of $40,000, and that the money which, according to the contract, was to constitute such payment upon Terrazas’ compliance with the contract had then its situs in the state of Chihuahua, made it none the less a personal action. Pomeroy, Eq. Jur. § 1318; Miller v. Rusk, 17 Tex. 170.

Being essentially a suit in personam, the judgment as to Ross, rendered on service by publication, was void. Pennoyer v. Neff, 95 U. S. 714, 24 L. Ed. 565; Black on Judgments, § 836. Being a void judgment as to Ross, because rendered without jurisdiction, under the accepted law of this country, the trial court properly denied it any effect as to him.

As to Masterson, the Mexican court had jurisdiction, since he entered his appearance in the case. We ar„e convinced, however, that upon another ground the judgment as to him is deserving of no recognition at the hands of the courts of this state. There is no difficulty, we think, in determining the general principles of law which govern the standing of a judgment of a foreign country in our courts. Where there is a competent court, jurisdiction of the parties and the cause, an opportunity for a full and fair trial, regular proceedings according to the course of a system of civilized jurisprudence, likely to secure an impartial administration of justice between the citizens of its own country and those of other countries, with nothing to show either prejudice in the court or in the system of laws, or fraud in the procurement of the judgment, and there is no special reason why the comity of the United States should not allow it effect, the merits of the case, in an action in this country, are not subject to retrial on account of errors of law or fact in the rendition of the judgment. Hilton v. Guyot, 159 U. S. 113, 16 Sup. Ct. 139, 40 L. Ed. 95.

But, jurisdiction being granted, the chief requisite for the recognition of a foreign judgment necessarily is that an opportunity for a full and fair trial was afforded. This means, not a summary proceeding, though sanctioned by the law of the forum, but an opportunity to be heard upon the proof where it is apparent that the cause involves questions'of fact, and to have it considered by an unprejudiced court

The proceedings shown in relation to this judgment make it manifest that the trial of the case in the Mexican court was wanting in these essential elements. They reveal that the action was one unquestionably resting in questions of fact, and that Masterson pleaded what would have constituted a good defense, yet that he was denied the right to present it, it not appearing that his offer to support it was unseasonably made. If it be urged that this was warranted by the Mexican procedure, we are unwilling to give condusiveness to a judgment which such a procedure sanctions. The judgment and the recitals which accompany it are a maze of words; but, as we interpret their vague and confused statements, it appears to have been rendered upon no proof whatever. It furthermore appears that Masterson was denied an appeal from the judgment upon what seems to us to have been a frivolous ground; namely, the omission to affix a stamp to the document of appeal. The entire proceeding appears to have been arbitrary in its nature and summary in its execution; and the court, in our opinion, properly declined to give the judgment effect.

The judgments of the district court and the Court of Civil Appeals are affirmed.  