Case Information
*1 OFFICE OF THE ATTORNEY GENERAL OF TEXAS Honorable J. J. T- ,;' ~
Supervl8or, Mutual Aamssment Insuranas Board al Insurance Comniesionera \? : L Aua tin, Texas
Dear sir1
Your request for carefully mnalderedbythl We quote from your letter as r0ii0~t
0 with refer- ra Health and retferenee to the matter ntly uIm?OP CraIm and ymom3vllle, Texas." nalomd oontalns oertlf'led copy of lalntlff alalnmnt gpirmt defendant e sum of $231.36, plus costs of $5.65, and rendered in the Jwtioe Court of llscy CountS, Texas. -' .~ Your fllr3 slso dhwlosea letters from plasintlil'cr attornegsstatlng that said judgmmt is more than test day8 old md therefore fXna1. Said sttorneya in their letters request th6 Board~Of IaJmranrm Conuulasloner~ take ration in the that matter.
Yaw file also ,$.%8olom38 that on August 8, 1940, ,' *2 xonorable J. J. TlmmiM 1 Page 2
gou called the judgmsnt to tha attention of defendant lna~r- anus company aud requested an explanation from said company as to why said judgment had not been paid. By letter dated August 9, 1940, in answer to your request, defendant company Me the following explmation:
“We are very glad to sdvlse you that this case has had our btteIitiOn, but the bttorney that we hired to represent us evidently did not bttad to it and default judgment was taken.
“You probably know this was a suit where we changed a polioy to aomply vith Senate Bill and the man dld not like the policy and sued for bll of’ hi8 premiums he paid under the old oontraot. “We hbve nlnetg days in which to effeot an appeal from June 15th, and the matter will have our bttention.”
You hbVe blao Informed us that defendant is mutual assessment life insurance company and is subject to Section 4 of Article 4859f. Vernon@& Annotated Texas Civil Statutes.
Section 4 of Article 4859fe, Vernon’s Annotated Texas 7;:: Statutes,appliea to ,defendant company and reads 8s fol-
“Sec. 4. Before bray certificate or permit shall issue to any corporation under the terms of this Act, the corporation shall furnish the Boerd of Insurance Commissioners with evidence of the fact that the copporbtion baa on deposit with 8oms bank trust company in this State subject to tie payment of its obligatibns for benefits due under its policies or certificates wheresoever incurred a sum equal to the face value of the nnxlmum loss insured by said COrpOPbtiOn In any individual polioy issued by it. Said deposit shall not be subject to check by the corporbtlon, but themrporatlon my drbw the lntereat,~ if any, accruing on said deposit. Said deposit shall be held&r the proteo- tion of pollcyholders and claimants wheresoever the rlghta of said policyholders and claimants may have *3 Rozwmble J. J. Tlmalna, P8ge
acorued been lnoumwl, the pwpoae of said fmd being to guarmteethe prymentof the unountoplng by the oorporetlon on any valid ala&n a&nat auoh corporation for benefits under polloy or oertlfl- o&e after dkbtemlnstion by the oourt of f-1 juria- dlotlon wheraver renderad. 6ald deposit Wall be aubjeot to the extrrordlnwy nits of bttmhnent and garnIshmenta w providedb the lava ofthla State, but arid writs l h8ll no t laaub until f-1 judgmsnt has been rendered *galnat the oorpontlon. If said fund abll beoome depleted or ahbll beooer impounded by some proG.aa or a court, then th9 Board 0fInaurcmoe Oomfdaaionem ahallre~u%~the oorpora- tion to lmwd.l~tely raatora uid dapoalt to its origin- bl sum, and upon tha SIllure of the oorporation ta 80 restore abid depoalt wlthln ten (10 d8y8 rit6r l uoh notloe, the Board of Xnaqwme 0 4zullmi S~SIonera ah11 call upon the Attorney QWer8l to proceed &@nat the oorpoawtion aa provldatj in Seation 13 of this Aat." : l
Artlole 2431, Vernon~i AnnoWted Tens Civil Statutes, r&erring to judgmmta in the Juatlae Court, rmda u Sollovar lengthln i “The jtad@mutabUbereootiodat
the jwtioe*a dooket, and&l1 k signed by tbo juatioel alomly state the detemlnatbn of the rlgbta of the gwtlea in the aubjoat latter in oon- troveray and the pu%y who l hrll pay the ooata, and shall dlreat the laau4me of auoh prooeaa u my be neoeaaaryto cmrrytho judgnmnt into exe- aution.”
Art%ole 2439, Vernonfa Annotrted Teams Oltil St+ tutea, rqada u followat
‘A juatioe rwytith%ntenda~ after the rendition of L udgment by deiault 01? of dlamlaarl, set ulde l #h udgmnt, on motLon in urltlng, for ! good oauae. shown, supportad by affidavit. Hotiue
or awh motion ah&U be glwzt to the oppo8ibe]iurty at leaatone fulldayprlortotbe hurlngthereof." The oaae of Riohbevg va. &ldwLn, 89 SW (2nd) 851, holda that Justice of the Puree ~88 vlthout ruthority to set *4 Bonorable J. J. Timlns, Page
aside % default judgment and v&s vlthout authority to continue the cause after themplratlon of ten days froan Its rendltlon bnd thbt therefore the plalntlff was entitled to exeaution on hla judgment aa a mtter of right.
Article 2445, Vernon(r Annotated Terns Civil Sta- tutes, rebde 88 fOliOV?3;
"The judgmnta of the juatloe courts ahbll ba enforced by exeautlon or other appropriate process. Suah exeoutlon or other proaeaa shall ba returnable in aixty,daya."
Artlale 2448, Vernon's Annotated Texas Civil Sta- tutes, rebda ba rollowa:
'On the eleventh day after the rendition of anyflnfil judgmnt, it the oaaehaa notbeenap- pealed, and no stay of exeautlon haa been granted, the justice shall issue 8n exeoution for the en- rorcamant of auah judgment and tbecolleotion or the coat8."
Artlole 2454, Vernonlr Annotated Texas Civil Statutes, reads as follawar
“A party to b final judgwnt in any justice court B3Sy bppebl fherefrom to the aounty court vhere awh judgment, or tha amount 3.n aontrovaray, shall exoeed tventy dollars etolualve of coats, and In auoh other oases aa may be expressly pro- ,vlded by law."
The oaae of MO, Pba. Ry. Co. va. Bouaton Flour Hllla, 2 App. C.C. 573, holds that the orlglnal judgment In the Jus- tloe Court disposing of a oaae becomas f-1 on the expiration of ten days after Its rendition, if a motion for nev trial haa not been made and that when a motion for new trial la made, the judgment baaomes fine1 wban auoh motion baa been overruled.
The ease of DillaM vs. Alll60n, ?O SW 1023, holds that ln b Justice Court, whe e after vetiat la rendered againat the plaintiff, the ustlcre adjaed the coats agblnst J'
the plaintiff, and awarded exeoutlon, said judgnmnt was a r3.m *5 Enuorable J. J. Tlnsnln8, Page
judgment Srom whloh the plaintifS might appeal.
Article 2455, Vernon's Annotated Texas Civil Statutes, reada a8 follows:
'In all counties In which the civil jurlsdic- tlon of the county oourts has been transferred to the dlrrtrlot courts, appeal8 and vrlts OS oertlorarl nag be prosecuted to remove 8 case tried before a justice of the peaoe to the district aourt, In the 8ame mannerandunderthe name olraumstanoem under vhlch appeals and writs OS certiorari are alloved by general law to remove oausos to the aountg aourt."
Article 2456, Vernon'8 Annotated Texas Civil Statutes, reuda at4 Sollov*r
"The party appeaUng, his agent or attorney, shall, vithln ten dags from the date of the judg- Plant, file with the justlao bond, with tvo or more good and suSSiclent 8uretie8, to be approved by the justice, in double the amount OS the judgment, pay- able to the appellee, conditioned that appellant shall prosecute hle appealcto sffeat, and shall pay off and 8atlaSy the judgment whloh may be rendered agalnathlmon8ppeal. Wheneuchbondhaa been filed vlth the justlae, the appeal &all be held to be thereby perfected and all part&s8 to eald rruit or to any suit 60 appealed ahall xmke their appearanoe at the next term of’ aourt to vhlah said aam haa been appealed without further notice."
Article 941, Vernon's Annotated Texas Civil Statutes, reada a8 r0ihtar
“After final jud@mnt in a justice court in any 00-e except in oases of Sorclible entry and detalner, the aause mry be removed to theaounty court hy writ of certiorari (or ii the alvil jurla- diation has been tramSerred from the oounty to the dlstrlot aourt, then to the distrlot court,) in the manner hereinafter directed."
Article 942, Vernon*6 Annotated Texaa civil Statutes, read0 aa follovst
llonomble 3. S. TIannlns, Page
“The vrit OS oertlorarl shall be Issued by order OS the county oourt or the judge thea%of (OF district oourt or judge thereof, if jurlsdia- tion IS transrerred to the distriat aourt,) as provided in the preceding Article."
Article 943, Vernon% Azmotated Texas Civil Statutea, reads 48 follovst
“The vrlt rhll aa+mand the justice to mke an8 certify aopy OS the entries in the cause on his doaket, and truismit the same, with the papera in his posses8ian, to the proper oourt on or before the first day of tho next term thewoi.
IT there is not tlm ior mush transaript'and papers tobo Slledatsuahtewm, then they shall bee; tiled at the next swaeedirag term OS reid
. Artlale 945, Vernon's hnnotatsd Texas Clvll Statutes, reads as Sollwsr
"To aonstltute a sufilaientcamase, the hats stated mat show that either the justlao OS the peaae had not jurlsdlctlcui, that l.njwtlao vas done to the appliaant by the final determIn&tlon oftha altar proceedIng,mdtbatsuahInjustiae MS not caused by his awn Inexauseble negleat,"
&tlcle 996, Vernon's Anhated Texas Civil Statutes, reads as sollwsr
“Suoh vrit shall not be granted aiter nlnstg days from the rl.nfbl 3ulgmerit 02 the matlae."
unilerraortng oura )
Article 947, Vernon~s Annotated Texas Civil Statutes, reads a8 rolmm t shall not be issued unless the
"The nit appllcrnt ah&l1 r¶.rst amxe to be filed a bond vith two o r mwe goad and suffWi.nt l untie8, to be ap- paved by the olerk, payable to the adveme party, in suah mtat as the judge aball dlrqat, to the offeat that the party applying thonfor vi31 per?oml the judgmnt of the aounty or diatriat aourt, ii the *7 Hanarab1.e J. 3. Tlmalns, Pa@ie 7
Mm8 sballbs a@nstUmr"
Artials :91(9, Vdrnon@s Annotated Texas 01~11 Statutes, rea68 as followst
=AS IIOQP aa swh afii&tit, order of the e, an6 bond, shall have been filed, the alerk J 1 issue a nit of aortlorarl.' Artlole 950, Vernon~a Anaotated Texas Olvil Statutes, re8ds as follarrr
Art&ale 951, V#zton*a Amotbted Texan Olvll Statutra, reada *a follows,
“Uhenewr a writ of aertiomrl h8s bean la- awl, the alerk shall forthvith ia aw l altatim for the my dversoly intere8ted." A2-tiale 9fS!,Vetmmn1aAnnot8tedTexrs CitilSt~tutea, reads as follwar "The ration shall bo dookotatd ln the nam of
the 0rigata phintiff, 88 plcintirr, ai3d 0f th0
orlglnal detendant, as 6afendmt.a Artlale 953, Vermtt~a ¬&ad Teas Olvll Statutes, rads as follwst
"At th0 rint term or the aourt to vhleh the asrtlorarl la returxmble the advwso party Iry ~ smw to 6iaaias the oertiomri for vant of auffi- olent oawe ap pearing In th e l fYMavlt, Sar vant of l uftialent bond.”
Artlola 955, Vernon~s Annotated Texas 01~11 Statutes rea68 as followsr
OIf the 0erfiiorWi be 6latslarrd~ the f-tat *8 Honorable P. J; Tlmnlm, Page 8
ah&U dlreat ths justlae to proaeed with the execution of ths judgment be1ov."
Article 959, Vernon’s Annotated Texas Clvll Statutes, reads as Sollo~st
"The aawe shall be tried de nova, in the oomty or dlatrlat oourt J and judgtssnt sh6llbe rendered as in oases appealed from justloe aourts."
Artlol. 960, Vernon’s Annotated Texas 01~11 8tatut.8, reads as followat
We quote from 26 Terns Jurlaprudenae - Justlaos or the haa. - Certiorerl - f 95 - lhause for ~on-appearanae, pages 894-5, as follows,
"~ootvlthstmdlng a hovlng OS snrltorious 0l.A.m or defense, oertlarrrl is not available when.
without a4 apparent exouse, the petitions* has negleoted to present his claim defense in the aourt . The n&loot of the petitioner to justlae prepare his aase ror trial and hllure to present all his proofs, leave him vlthout redress by oer- tiorari. Uhere the petitioner seeks to excuse hl.smelfhemustshovthathewas reasonablydlll- gent, However, the statutory vords we %I8 own i.nexauar'FLe negleat,1 and, aa construed by the aourts, the pst%tloner 1s oxouaed is he lnstruated an attorney to appear for hlm 8nd his ~t~Otl0~ were neglectsd. And or aourseI 8 stronger oum 1s presented where it is shown that the attomsy VI8 prevented by aoaldent from aeqlng out the mtrua- tions of his allent.", (Undersaorlng ours)
The fasts relative to the matter in dirausslon fur- ther dlsolose that 90 days have not elapsed sinae the mmdl- tion of the judgmsnt. The letter OS the aompany dated August 9th, abovs referred to, indlaetes that defendAnt aompaw vi11 *9 ~~orebl. J. J. ‘Em, 9atP 9
1a.l~ sook a vat or orrtlorulh the aaae vitlrin th. t1m.
alloved by at8tute.
we think the present status o? the judgment la that is rinri udgment that It la nov pro9.r gw to the extent ior, the Justlo. ourt to lsaue l xtraordl.aary vrits of attaoh- d mnt and ~rnlahmmts, as provided by the lava of thla dtate, a@nat the l titutory deposit 0s d0r0ttdd oosqany In defen- &at’s depository bank or trust oompany ln this atate, u OUtliMd by &OtiOD 4 O? &tiolO 4859?, 8Uprh f? d.?Owt to stay further prooeedlnga on the &ad&mat ooapaay ?alls by pursuing its remedy of eertlmrl as outlined by the at&tutor quoted above, the plalntl?? may proaeed vith hla l m vrlts for the oolleotlon OS the judgmeat agUmt the itatutorr 60pos1t as 0ut1ia.6 by aeotlotl 4 0r Artlol. mgr, aupsu.
&mover, the inatltutticm o?,auoh pmaedur. vould probably .be 0s questionable v8lu.'~3 pbbiairr if d&mdmt pmu*d his tatutorymssedy of dertlorarlvlthlnttze prope~tiru, aad mowed the vrlt of oerti@iWi atay%xq the preoea on the judgmaat and brlnglng thS oaae to the oounty or Y.r a~- tr?iat aourt., aa tha oaae ml&t ba, for det.emQmtlon. %%e oue right be trl.06 in thta oouaty 0OuMi or dlatriot oourt axsl from there appealed to the rp9.1lat. oowta, vithin the tiw~~~and~mjo?ths~~~pro~iQdbJ~v,~
a auperaedus band posted 88 provided by tur for the rtay or the .aroro.mtat or the jwQa.nt uld a?t.r mob oourao, the doelslon OS the qpellate aowt of lut resort In tha utter would be the fins1 judgzasnt aettl3ng the entire matter. h8s 4 plrla +d adequate remady to oolle0t
mbwisr his judgwnt, IS, as aad vhen, it Maoma a ?lnal lstter by pursuing the reaasdy outllned by Seotlon 4 OS &tlol. 4859s.
The Justice Gout% may or my not be “the aourt of S%nal jurlrdiatlon? tioh detemnlma vi11 dekm&ne the matter ratmy. I? doSon&& ialla to properly ptl9sue the remdy 0s c.rtlor8Fl vlthln the tzlaa reequlxtid by lay the j*- mnt o? the Juatloe Court vi11 OS oourse doubtless aettle the matter. To olarliy our poaltlon further v11 state that it la Our vlev OS the lav that nw end at the pPeaent tha plalntlSS:a judgment la a valid SInal judigmsnt upon vhith he 1s entitled to exeoutlon at this time and a fita judgmat at th.ls tllac, upon vhioh he nay legally tieoure in the manner outlined by law extnordfrary vrlts 0s attaahmsnt and garniahmnt. The
318
,
mnorable J. J. Tlssslna, Page
legal right 0s deSet&uit to seek the vat 0s aertlomri v1thl.n the statutory period does not of itself aperate as a super8edaa8 of plaintiff'8 judgaent and prevent plaintiff from proaeedlng on hla j-t, In order to prevent the l nforaesnmt of plalntlfP8 judgment the vrlt of oertlorarl mmt b8 actually obtalnti under the statutory prooedure within the statutory tSms.
In vlev of the aontlnigencles and unaertalntles in- volved herein and ln view of the ?a& tbpt the statutory de- poalt OS defendant conpany haa not yet beaome depleted aor has yet become impounded by l ottmpmaeae of a &urt, it is the opinion OS this department that you should take no wtlon 4t this the.
Xt is the further opialaa of this depeatmnt the of de?ead4at oompmy aa qequlred by IS tha atetutory &posit SOOtiOn 4 od hrtlole 4&gf, sups, beaomas depleted beocmsa Impounded by aoas proeeaa of oomrt, It vi11 then baeom the duty 0s the Ii+xrd 0s Iasur4aae Comlaaianers 0s fox88 to take steps to require defendant to lmadLate1y restore aald de sit to it8 orlglnal sum aa outlined by Seation 4 OS ~1010 4 IFi gf. I? defendant oompany then faila to natore sald depoalt vlthln ten 64~8 after notloe from the Board, It vi11 then becoma the duty of the Board OS Inauvance~Oomslsalonera to proceed aa re- pubed by l&v.
Truatlng that this aatlaS6atorlLy anwire= your ln- qulry, we are
Very truly yours ATTOBIIBY OEWBRAI. OF TESS