Merchants' Mutual Insurance v. J. H. Brower & Co.

38 Tex. 230 | Tex. | 1873

Walker, J.

There are several interesting questions involved in this case, but they are all so well settled upon authority and by statute, that we shall endeavor to arrive at a solution of the case without discussing them seriatim.

The defendants in error are non-residents of the State. They sued C. H. Jenny, also a non-resident, in the District Court of Galveston county for a balance on account of about $3000. Jenny, it appears, owned stock in the Merchants’ Mutual Insurance Company, which had its locus in Galveston. Suit was commenced by attachment, the stock in the -company was levied upon, and the company garnisheed.

An affidavit was made setting forth that Jenny was a non-resident, and that he owned assets in the county of Galveston.

The attachment was levied on $2500 stock in the insurance company.

Application was also made for the writ of garnishment (not under oath), which stated that the company had effects and credits in possession belonging to Jenny. The writ was issued to the Merchants’ Mutual Insurance Company, John S. Sellers, President, calling for an answer under oath, and Sellers was served with a. writ.

On the twenty-first of June, 1869, a supplemental petition was filed, alleging the seizure of $2500 stock in the Merchants’ Mutual Insurance” Company, by the sheriff’s return worth only $700. An alias attachment was issued and levied on personal property claimed by Fanny Watson,, who intervened.

At the March term the death of Jenny was suggested, and the cause continued for service. At the September term, without setting aside the suggestion of the death of Jenny, after order for scire facias formally obtained, the clerk issued a citation, by publication, for Jenny, demanding his appearance. The writ is returned by the sheriff as received on the eighteenth of September, 1871, and executed on the twentieth of September, 1871, by publication.

At the November term the cause is again continued for service. At the March term, 1872, the suggestion of Jenny’s death was withdrawn, as having been made by mistake' The cause was then submitted to a jury. The jury found in favor of Fanny Watson for all the property levied on under the alias attachment, and also found for the plaintiffs against Jenny a verdict for over $4000. The court entered the judgment, and ordered the sale of the stock in the insurance company. On the sixteenth of April, the insurance company not having answered the writ of garnishment, a judgment was taken against it for the whole amount of the judgment against Jenny.

There is error throughout these proceedings. The court never had jurisdiction of the defendant Jenny ; no valid judgment could be rendered against him, and none could follow against the garnishee without it. Stock in a corporation is not subject to attachment. (Haley v. Read, 16 Georgia, 437; Nashville Bank v. Ragsdale, Peck’s Reports, 296; Hayne v. Stockweather, 17 Mass., 240; Poster v. Potter, 37 Mo., 525 ; Price v. Brady, 21 Texas, 614; Taylor v. Gillean, 23 Texas, 514, 515.) .

The judgment must be reversed and the cause dismissed.

Reversed and dismissed.