278 S.W. 456 | Tex. App. | 1925
This suit is a proceeding in garnishment to collect a judgment theretofore recovered by the Illinois Torpedo Company against the Phoenix Oil Company and the Phoenix Petroleum Company, jointly and severally, for the sum of $747.92. The writ of garnishment was sued out by the Illinois Torpedo Company against the United Producers' Pipe Line Company as garnishee. The garnishee filed an answer, admitting an indebtedness of $809.44 owing by it to the Phoenix Oil Company, and the sum of $1,134.81 owing by it to the Phoenix Petroleum Company. After the writ of garnishment was served, the Phoenix Oil Company and the Phoenix Petroleum Company filed a replevy bond to replevy the sums of money which the garnishee admitted in its answer to be owing to those companies, and J. L. Walker and W. L. Carr were sureties on that bond. Upon the filing of that bond, the garnishee paid over to the two companies who filed it the amounts of money which it admitted was owing to them. After the replevy of those amounts, the Phoenix Oil Company and the Phoenix Petroleum Company and Walker and Carr, the sureties on the replevy bond, filed a motion to quash the garnishment proceedings on several grounds, including alleged defects in the affidavit for garnishment, in the writ of garnishment and in the service of the writ as shown by the officer's return thereon. That motion was overruled, and upon final trial judgment was rendered in favor of the Illinois Torpedo Company upon the answer of the garnishee against the Phoenix Oil Company and the Phoenix Petroleum Company and Walker and Carr, their sureties on the replevy bond, for the sum of $747.92, the amount of plaintiff's recovery in the original suit, which was less than the aggregate which the garnishee admitted owing to the two companies. From that judgment Walker and Carr, the sureties on the replevy bond, have prosecuted this appeal.
There is no merit in appellants' contention that the affidavit of the garnishment did not sufficiently allege the residence of the garnishee, or in the further contention that the writ of garnishment was not in statutory form. But we are of the opinion that the further contention that the service of the writ of garnishment, as shown by the sheriff's return on the writ, was not in compliance with the statutes, and was therefore ineffective, should be sustained. It is stated in the return that the writ was executed "by serving United Producers' Pipe Line Company by delivery a true copy to its Asst. Sec. E. A. Bellis."
Article 1860, Rev. Statutes, reads in part as follows:
"In suits against an incorporated company or joint-stock association, the citation may be served on the president, secretary or treasurer of such company or association, or upon the local agent representing such company or association in the county in which suit is brought, or by leaving a copy of the same at the principal office of the company during office hours."
Article 278, Rev. Statutes, reads as follows:
"The sheriff or constable receiving the writ of garnishment shall immediately proceed to execute the same by delivering a copy thereof to the garnishee, and shall make return thereof as of other citations."
It thus appears that the statutes do not authorize the service of the writ of garnishment upon an assistant secretary of a corporation or association; and, even though the words "Asst. Sec." in the officer's return *457 be construed as meaning "assistant secretary," the service upon such a representative was not in compliance with the statutes.
In Insurance Co. of North America v. Friedman,
"It is not upon the filing of a proper affidavit and issuance of a valid writ of garnishment that a creditor secures a right or can be said to have or prosecute a cause of action against one indebted to his debtor. That right attaches when through the process provided by law the creditor suing it out has acquired the right to have the money or thing in the hands of the garnishee and due or belonging to his debtor appropriated to the debt due by the latter. `Garnishment rests wholly upon judicial process and depends upon the due pursuit of the steps prescribed by law for its prosecution. It can borrow no aid from the volunteered acts of the garnishee. Such acts will be regarded as void so far as they interfere with the rights of third persons.'"
To the same effect are the decisions in the following cases, in addition to many others which might be cited: Harrell v. Mexican Cattle Co.,
In Latham Co. v. Radford Gro. Co.,
In Liberty Brand Canning Co. v. American Stores Co., 1 W. W. Har. (Del.) 492,
"But where the statute prescribes that jurisdiction is to be obtained in a particular way, then the requirements of the statute must be complied with or jurisdiction cannot be acquired. If there are any hardships under the law, it is not for the courts to amend the statute, because that is a duty which is imposed upon the Legislature."
See, also, Fletcher on Corporations, vol. 4, pp. 4429, 4437, 4477, and other cases there cited.
By article 279, Rev. Statutes, it is expressly provided that, when the defendant in the original suit replevies effects that have been reached by service of a writ of garnishment, he may make any defense to the garnishment proceedings which the garnishee could have made.
In Fleming v. Pye,
Accordingly, we are of the opinion that the judgment of the trial court against appellants should be reversed, and judgment should be here rendered that plaintiff take nothing as against them, and it is so ordered.