194 S.W. 384 | Tex. | 1917
This was a garnishment suit by Presnall and Mossner against the plaintiff in error bank, after judgment obtained in another District Court against one Hugh Rogers. The writ of error was granted on the bank's application under, as we find, a misapprehension of the record. The judgment against Rogers, upon which the garnishment was based, was upon citation by publication. In granting the writ we were of the impression that at the time of the filing of that suit and the service by publication Rogers was a non-resident of the State. There is nothing in the record of that cause, however, showing that such was the fact; and the judgment, therefore, can not for this reason be held void upon collateral attack. Rogers was in fact at the time a resident of the State, according to an agreement contained in the record in the present case.
The record in the suit against Rogers does not disclose that the service of citation was invalid, defeating the court's power to render the judgment, as is the further contention of the plaintiff in error. The judgment *35 was silent as to the service. The record of the cause may, therefore, be consulted to determine its validity. But upon collateral attack it can not be determined except by the record. The record shows this and nothing more concerning the service:
The citation was issued July 13, 1907. Its return day was November 25, 1907. The sheriff's return recited that it came to his hands on the day of its issuance, and that it was executed by being published in a newspaper, — the paper being named, — once in each week for four successive weeks. The dates of the publication were then recited and were given as the 11th, 18th, and 25th days of July, 1907, and the 1st day of August, 1907.
It was only necessary that the citation be published once a week for four consecutive weeks before the return day. The four successive weeks referred to in the return plainly included the week of July 13 as the first week of the publication. Had the publication been made upon any day in that week after the citation reached the sheriff, full twenty-eight days would have elapsed before the return day. The 11th of July was an impossible date for the publication in the first week, since the citation was not issued until the 13th day of that month. Its recital was evidently a clerical mistake. Being an impossible date, it will be disregarded. This, in effect, leaves the return without any recital as to the date of that publication. It amounts only to an omission to give the date. It does not show that there was no proper publication during that week. With the return otherwise positively affirming that the citation was published once in each week for four successive weeks, its publication upon a possible date during the first week will be presumed. Hopkins v. Cain,
The contest in the present suit concerns a general deposit to Rogers' credit in the bank when the garnishment was served. At the time of the service of the writ Rogers was indebted to the bank upon two notes, neither of which had matured. He was then a citizen of Oklahoma. No contention is made that he was insolvent. We decline to hold that the mere fact of his non-residence entitled the bank to offset the deposit against the unmatured notes and thus destroy the effect of the garnishment. It is a primary rule that a debt must have matured to be available as a set-off. An exception is made where the debtor is insolvent. But this is upon the equitable ground that, otherwise, the debt can not be collected. No such equitable consideration is presented by the mere non-residence of the debtor. We allow the seizure of the property of a non-resident by the extraordinary writ of attachment only upon affidavit that the debt sued upon will probably be lost unless the attachment issues, and permit no judgment appropriating his property in such a case until the debt has matured. If a bank may offset the deposit of *36 a non-resident against his unmatured note, such a depositor would never know when he could with safety draw against his deposit. The contract expressed by a note protects the maker against the demand for payment until its maturity. Non-residence has some disadvantages, but hardly that of itself absolving the other party from a contract. The deposit was subject to the garnishment.
The judgment of the Court of Civil Appeals is affirmed.
Affirmed.
