Waco Lodge No. 70 v. Wheeler

59 Tex. 554 | Tex. | 1883

Watts, J. Com. App.—

This was a judgment by default rendered against plaintiff in error as garnishee. The affidavit for the writ of garnishment recites that the affiant had “ reason to believe that Waco Lodge Ho. 70, Independent Order of Odd Fellows, which lodge is a private corporation chartered by an act of the legislature •of the state of Texas, approved the 26th day of January, 1874, .and whose trustees are S. W. Mabry, S. A. Killough and B. F. Bichey, who are resident citizens of McLennan county, state of Texas, is indebted to said life insurance company.” A copy of the writ of garnishment was served upon each of the parties named as trustees. Plaintiff in error insists that there was no legal service upon it to support the judgment by default.

The statute then in force providing for service of process upon private corporations consisted, of two sections. First, by section 2 of “ An act to fix the venue in certain cases,” approved March 21, 1874, it is enacted “That service of process on any of such corporations may be had by delivering a copy of such process, with certified copy of plaintiff’s petition, if any, to the president, secretary, treasurer, principal officers, or the agent.”

By section 2 of “An act to confer jurisdiction of certain civil •causes on the courts in the several counties in this state,” approved April 17, 1874, it is enacted “ That service.of process may be had on any such corporation, association, or joint stock company, by delivering a copy to -the agent or person representing such corporation in the county in which the cause of action or a part thereof arose.” It does not appear from the allegations in the affidavit for the writ of garnishment that the trustees named are embraced in the terms of the statute. They are not shown to be principal officers, or agents or persons representing the corporation. For anything appearing to the contrary, they might be the trustees of the corporation for a particular or limited purpose, holding the legal title to some particular piece of property for the corporation. It does not appear that these trustees or either of them was “ president, secretary, treasurer, principal officer, agent, or representing the corporation • in McLennan county; ” and borrowing the .language of the supreme court of California in O’Brien v. Canal Co., 10 Cal., 343, “ The summons might, with as much propriety, have been served upon any other stranger.”

To authorize a judgment by default against a corporation, the process must be served in the manner and upon some one of the persons named in the statute. And as that was not done in this case, the judgment against plaintiff in error ought to be reversed and the cause remanded.

Reversed and remanded.

[Opinion approved June 5, 1883.]