*1 Appeals Reports. District, [2d a the signed, require it would not Ward v. Bon- reversal of judgment. ner Eddy, and 168. in all affirmed. judgment things be Affirmed. 12, 1893. April

Justice did sit in Head not this case. Montague

First National v. A. B. Robertson. 544. No. — Out, Appeal on 1. Practice Citation in Error Sued M., the judgment When.—R. recovered the District 1890, bank, February 25, December 1889. defendant as error, issued, petition and filed and had citation its bond for and writ Court, transcript May on filed record in and submitted 7,1892, and re- case on brief at that term. June Court reversed cause, 25,1892, rehearing, manded the June sustained a vacated motion docket, by it, previously and struck be- judgment entered the cause from transcript had ever cause the failed showthat the citation in error been served. 20, 1892,plaintiff served, again June error had and and an alias issued transcript 30,1892. Held, September filed on motion permitted over because two dismiss elapse cited, filing its and because after and bond before be- passed of the after terms Court had appeared fore it it from citation to be served that as believed, attorney and had reason record of the served, believe, judg- original duly citation in and that error had been suspended by good ment and sufficient in favor of error was bond, likely supersedeas delay, injury there had no from the result justify the prosecuting no inexcusable writ of error as would such appellate sustaining motion to dismiss. Against gar- Bank—Answer of Garnishee.—In Garnishment answered, bank, cashier, that proceeding against garnishee, nishment the con- nothing, but judgment it owed when the writ debtor $2000, debtor trary owes; judgment the bank which he that he owed still bank, but that sixty of the the writ shares when was served owned stock value, then, person full to a third for its stock was and still is. such bank, had at the time debtor has no interest served, Held, though the above mentioned. stock to the not indebted

answer did notin those exact words bank was state debtor, time of he did therein at the nor that not own shares stock answer, answer, and it yet fairly no other inference can be drawn ownership. substantially negative did such indebtedness — Against Corporation. :Quere Same—Writ Garnishment against a for want bank where default of an answer taken Can required the taken under the answer of the commission officer to take the the cashier of the to whom was directed answers of him, naming of the bank the answer itself? April, 1893.~] Kennedy. Tried Hon. from Mitchell. below before William

Error *2 Upon 1. of both Smith, filing in error. plaintiff W. for George and the complete a writ of error and bond the petition right are filed within two and bond petition and if perfected; writ is issued may the citation in error judgment, the rendition of from 1402; Stats., art. years. two Rev. expiration after the and served Texas, 23; Crunk, v. 23 605. Marks, Texas, 25 Crunk Peabody v. statutes allow the defendant present later 2. The decisions under from docket for defective citation to have case stricken in service, plaintiff in such eases allow error to yet and or defective up the bring issued and served to case on same alias citation have Adams, Texas, 12; next term. Wilson v. 50 ensuing writ of error to Middleton, Texas, 537; Dibrell, Texas, 23 28 Batey v. v. Holloman Texas, Butler, 174; v. 30 Beavers contained substantial denial

3. The answer of of its A. L. or said Matlock owned shares indebtedness to well Co., to Far & at the stock in said those thereof; vague the answer have been and inartist although date and drawn, sufficient; justified pronounc and the was not in it is court ically have discharged but should him. garnishee, ing judgment against 5; 193; Treatise, 634, sec. subdiv. Drake Stats., Sayles’ art. on Rev. 5;2, Attach., 97, Wade 659, subdivs. on sec. Attach., If, after ght, in for defendant Looney and Garter H.R. Lewri error. bond, the plaintiff permits error and for pass without the defendant serving court with appellate terms of Stats., error, his writ should dismissed. Rev. arts. citation 354; Sollibellus, Texas, 10 Graham Sterns, 16 1392, 1397; Roberts v. 772; Rice, Thompson v. Anderson, 156; Thompson v. Texas, 237. DISMISS. TO ON MOTION 4th day On the of December, 1889, STEPHENS, Associate Justice. defendant in County, error recovered a of Mitchell District Court error, in a garnishment proceeding, at through attorney, $3764, from sum of a writ of error. prosecute tempted he filed its February, bond for day 25th

theOn promptly applied issued. He for and and had citation ob- a writ of error transcript the record, which he the clerk of said tained from day May, 1890, Court on 3rd filed caused to be the cause was submitted on his brief. term of Appeals Eepoets. District, [_2d court, docket of that the cause crowded condition of Owing the 7th day June, 1892, Anal till when disposition reached for judg- remanding cause. reversing ment was rendered June, 1892, day the 13th Thereafter, attorney, which, for a the 25th rehearing, day in said motion filed cause pre- and the June, was sustained vacated, docket, stricken and the cause was be- viously entered failed to in error had been transcript show cause served. day June, 20th

Thereafter, an again issued on defendant alias citation to be the 30th transcript September, Court on filed *3 October, 1892, in filed his the 1st of error motion in plaintiff’s dismiss writ of error plaintiff to because had Supreme the Court to after its years filing over two and bond be- permitted elapse cited, Supreme and because terms of the fore the passed had after Court bond before it had motion, in error to be on defendant. citation This with court, been transferred to this transcript, having has been submitted determination, plaintiff in connection with in our of error upon affidavits to relating negligence the motion and or diligence to error, and the issue as especially original in to whether plaintiff of in was ever served. error citation submitted, conclusion, is, affidavits and other matters

Our preponderance evidence, of that to citation according original conclude, plaintiff We further in error, was never served. that of solely upon -relied its at- Montague, the First National steps its necessary prosecute take the to and that torney impression, under the when he filed and attorney was erroneous sub- this in and thereafter until case record Court mitted Court, in that error by original had decided opinion, that he We are also of at time probably been served. served; that that citation had been reason to believe but owing good in papers the loss of intervening of time lapse original cause, particular has unable show facts or circumstances he been him. misled probably in favor of defendant in find, error sus-

We that bond, injury that by supersedeas and sufficient no is pended good in delay prosecution error' from in result to defendant likely to find, We neither plaintiff that in error nor at- error. this writ of of any in neglect prosecuting of intentional has torney guilty been has delay resulted from mistake fact on the of that We are plaintiff opinion, error. further for- counsel part of April, 1893.] that it be inferred

though proof upon point, there is no this direct acquiesced delay. silently that defendant in error has heretofore, prosecuted that a writ of error be provided might The law after final We know of no judgment. time within two any conclude, us dismiss this writ of error. We requires statute which has not fact, under the error foregoing findings this writ prosecute such inexcusable of error guilty record, this especially it a justify denying hearing would us conspicuously the fact that it is to our notice brought view of already has a mistake of judicial tribunal this State highest (under record, their by and declared defend- reviewed fact) entitled, below, recover by ant in is not virtue of error which, the sum this it seeks money proceeding, error justifies this decision paying. Certainly to avoid inference, prosecute that the writ of error which seeks to merit; think that the defendant in will rights not without and we error prejudiced In relief some- by overruling equity, motion. ordinary care, times be a mistake caused the want of granted against Pome, prejudiced Eq., if the is not person thereby. other difficulty, While under the we have decisions our conclusions, opinion, these we are without here re- reaching examined, viewing overruling several cases this motion we error; doing, commit no and if there in so seem to be would *4 justice. on the side of reached,

While Mr. in the Justice, Associate concurs conclusions Head, he expressed does so more on Chief account of views Justice Rob- separate erts in his opinion Terry Huffman, case of Overton Texas, 773, meet approbation, his than for the reasons stated sufficiency above. He doubts the of excuse shown the failure to have the opinion, also, sooner citation in served. See of Justice in that case acquiescence. Gould effect of The motion will be overruled.

Motixmoverruled. January HEAD, On the24th A. B. January, Justice. of Rob Associate sued a writ ertson out of the First National Bank of garnishment against Texas, upon Montague, rendered in his favor in District County 83226.66, Court of Mitchell for the sum A. L. Mat- of others, 19tli December, lock on the of

The garnishee alleged corporation, principal to be to County, office and that it was believed to indebted Montague Matlock, A. L. and that said therein. Matlock was owner of shares Appeals Reports. [2d District^ the court, to answer to term of de failing succeeding garnishee applied obtained issuance of commission

fendant take County to its answers to writ of This Montague garnishment. commission recited service of writ of and the failure garnishment ‘ ‘ answer, proceeded Now, therefore, follows: garnishee Morris, hereby are commanded forthwith to summon W. A. you cashier of said First National Montague, you before oath,” upon answer etc. This commission the hands having come into Williams, County W. duly of A. clerk of he Montague County, return, day November, 1889, Morris, made that on 20th A. W. named, appeared witness before him and made before answer as set forth headed, therein. These answers are “Answers Morris,” of W. A. the said 28th among things say, day other of January, “(1) garnishment or when said was served on him as cashier Texas, the First National Bank of A. L. Montague, said owed said hand, A. L. other said nothing; Matlock Matlock owed interest, bank; he $2000, with accrued amount still owes said over * * * Matlock, L. at the A. date said writ garnish said (3) him, sixty shares in First ment was served on owned National Bank $6000, the sum said bank Montague, amounting garnishment was at the time said writ of stock aforesaid served on Co.,& to secure the payment him to J. V. Farwell to them $6000, still hypothecated and that said bank stock is of note of to said the payment $6000; & Co. them of said J. V. Farwell to secure (4) in said at said A. L. Matlock has no interest had the time said him, was served bank stock garnishment above Morris, W. A. Cashier.” mentioned. [Signed] December, 1889, answer, exceptions on the 4th To were error, upon filed, ostensibly in interest defendant the ground had failed what it and refused indebted A. L. at the time of the of its taking deposition; what failed to answer number of shares Matlock also exceptions time of said answer. These do in said bank either error or his counsel. signed to have seem however, the court rendered day, sustaining the same *5 gave in favor of defendant same, judgment against $3764.07, the sum of for reverse which this writ garnishee bank as prosecuted. error is to the answer of not de- exceptions garnishee being signed by counsel, his it doubtful whether they in error or should have

fendant purpose. for any the court v. Zim- by Hemming been considered below 159; Texas, 82 erschitte, Texas, Billington, 4 Boren v. This ob- however, below; seem to have been raised in the does not jection, waived, opinion are it as we the court treating 155 April, 1593.] well It exceptions erred in taken. is true the answer of the holding not, words, in those exact state that the does bank not in- garnishee that he own did not shares of indebted to stock therein at taken the interrogatories; the time the answers were we but believe drawn, can be from the fairly made, that no other inference as answers negative such substantially and that did they indebtedness and owner- Attach., Drake sec. 659. ship. that at the time

The answer states service of the of garnish- Matlock ment the bank owed on the nothing, contrary but he owed it owes; also, that 82000, which he still he had no interest in the bank other sixty than the shares of stock Farwell hypothecated to attempt Co. No required statute, was made these shares sale as subject by but a personal rendered judgment against full amount of of defendant in judgment against Matlock, upon as favor total failure to answer. opinion

We are this was error. If the clearly of answer of the all, nothing there is bank was defective record to indicate such part willful full failure or refusal to make answer as seems to be required subject statute to it to by'our by default. Jemison Texas, 358. The specific 56 failure to make Scarborough, more an- to the swers seems to us to attributable more officer in them than to on the reducing writing part desire of the garnishee answering. evade it noted that the under Again: will be commission answer taken required to the the officer to whom it was directed Morris, W. A. cashier to take the answers of of the bank, not the an- itself. It has times been swers of several decided this State, not sustain a that such service will default against corpo- ration, well be doubted whether answers of Morris under jurisdiction upon confer this commission would court to render a default failure judgment by (for judgment "for to make full answer a judgment bank; seem to be would as default) is not raised question assignments and as there are ex- pressions might in some decisions seem to give weight to parties such an to this between proceeding, we Ins. Seeligson, Texas, 3; undertake its decision. Co. v. Railway v. Rollins, 579; Co., 65 Texas, 51; Bowers v. Ins. Ins. Co. v. Bros., Friedman

We are opinion court below should be re- remanded,- versed and the cause and it is so ordered. Reversed and remanded. 12, 1893. April rehearing

A was refused. motion for