Carrigan v. Semple , 72 Tex. 306 ( 1888 )

Station, Chief Justice.

On December 18, 1878, Stephen Moore ■executed to appellant his promissory note due one day after date. Both Moore and Carrigan resided in the State of Arkansas, and on June 6,-1882, the latter brought suit on the note before mentioned in the Circuit Court for that State sitting in the county of Hempstead. Pending that suit Moore died and the administrator of his estate was made a party and against him a judgment was entered on January 4, 1883. That judgment decreed the foreclose of a mortgage given to secure the note, and under it the mortgaged land was sold and the proceeds applied in part satisfaction of the debt. This seems to have exhausted the assets of Moore’s estate in the State of Arkansas. Some time prior to December 9, 1885, appellee was appointed administrator of the estate of Stephen Moore in Texas, and to him was presented the judgment before referred to for allowance, the proper credits being allowed. This was done on August 20, 1885, and the administrator rejected the claim.

On December 9, 1885, the note before referred to on which a judgment, had been rendered in Arkansas, after being properly authenticated and credits for sum received on sale of property made in Arkansas allowed, was presented to the appellee for allowance, but was by him rejected.

This action was brought on December 30, 1885, to recover balance due. on the note, and it may be conceded that both the note and judgment, rendered in Arkansas are made the foundation of this action.

The defenses were a general demurrer, general denial, and plea of the-statutes of limitation.

It is not shown that the administrator defendant has assets in his hands, which were ever assets in the hands of the administrator appointed in Arkansas; and it must be deemed settled that a judgment rendered against, an administrator in another State furnishes no right of action against an administrator appointed by the courts of this State in the absence of such showing. Jones v. Jones, 15 Texas, 463; Cherry v. Speight, 28 Texas, 503; Aspden v. Nixon, 4 Howard, 467; Stacy v. Thrasher, 6 Howard, 57;. Brodie v. Bickley, 2 Rawle, 436; McLean v. Meek, 18 Howard, 18; Low v. Bartlett, 8 Allen, 261; Ela v. Edwards, 13 Allen, 48; Slauter v. Chenowith, 7 Md., 211.

This is conclusive against the right of appellant to recover on the judgment. It is insisted that the note sued upon was a sealed instrument, and under the law of the State of Arkansas not barred by the statutes of limitation unless ten years had expired after suit might have been brought.

That seems from the evidence offered to be the law in that State.

The statute in this State must however govern, and by that an action on the note was barred in four' years, and the court below correctly so held. Clay v. Clay, 13 Texas, 204; Allison v. Nash, 16 Texas, 561; McElmoyle v. Cohen, 13 Peters, 312; Bank v. Dalton, 9 Howard, 522; Angell on Lim., 65; Wood on Lim., 17-23.

There is no error in the judgment, and it will be affirmed.

Affirmed.

Opinion December 14, 1888.