Ellis v. Emil Blum Co. ( 1922 )

COBBS, J.

This garnishment proceeding grows out of the claim set forth in cause No. 6774, Mrs. Ada Way Ellis et al. v. Emil Blum Co., 242 S. W. 1099, this day decided by this court and may be-looked to for the statement of the nature of the case and the issues involved applicable here.

The appellants assign their first error upon the refusal of the court to quash the writ of garnishment because the affidavit failed to state the residence of the garnishee, the State National Bank of San Antonio, Tex. Looking to the affidavit, the garnishee’s residence is sufficiently described twice: As the State National Bank of San Antonio, Tex., and further described as a private corporation doing business in San Antonio, Bexar county, Tex. It shows on its face to be a national bank, a federal corporation, not ambulatory at all, but by law confined to the place designated, where it can only have its domicile. The record shows that garnishee duly appeared and answered. Sunset Wood Co. v. Kelly et al. (Tex. Civ. App.) 203 S. W. 921; articles 9658, 9659, 9662, and 9668, tit 62 U. S. Compiled Statutes 1918.

The second, assignment complains that the trial court erred in overruling intervener's motion to quash the writ because the affidavit failed to allege that Mrs. Ada Way Ellis has not property in her possession within this state, subject to execution, sufficient to satisfy the debt sued on. The affidavit is:

“ * * * .And that the defendant, Mrs. Ada Way Ellis, has not within its knowledge, property in her possession within this state, subject to execution, to satisfy such debt.”

The statute (article 271, R. S.) requires that the affidivit shall state:

“That the defendant has not * * * prop-, erty in his possession within this state, subject to execution, sufficient to satisfy such debt.”

The only omission pointed out by appellants, which they claim invalidates the garnishment proceedings, is that the sole' word “sufficient” is omitted.

Of course a very strict rule is required in such preceedings. Here appellee is seeking to garnish a definite fund in a particular bank. The affidavit is based upon the ground, other than the funds In this bank, there is no other property out of which the money can be made in this state. As the oath is very pointed that she “has not * * * property * * * within this state subject to execution to satisfy such debt,” it is a sufficient compliance with the law. The greater includes .the lesser, and, when the oath in effect said she had no property, it can be construed to mean that she had not sufficient property for the purpose stated. The affidavit is more onerous than foe law requires, and the contention seems more technical than meritorious. Broyles et al. v. Jerrells et al., 14 Tex. Civ. App. 374, 37 S. W. 377; Wasson v. Harris (Tex. Civ. App.) 209 S. W. 760. The affidavit is a substantial compliance with tlie statute, and this assignment is overruled.

The third assignment complains that the court erred in subjecting the garnisheed fund to the payment of appellee’s claim, because it was a fund set apart to her out of her deceased husband’s estate by the probate court of Tulsa county, Okl., for her use and support.

While true, as contended by appellants, the presumption, in the absence of other proof, is that the statutory law of Oklahoma is the same as that of Texas on the same subject, the law here, in such cases, is covered by article 3411, R. S., which provides that the allowance to a widow shall' have precedence over all debts and charges against the estate .except funeral ■ expenses and expenses of last sickness. While this statute gives precedence and preference in, ■favor of the widow as against her husband’s general debts and community debts against his estate, there is nothing in the statute to 'exempt that fund from the widow’s individual debts.' It would require a plain statutory provision to exempt such fund from the payment of her debts. There is no such legislation. As, the court’s power is limited to the construction of statutes in proper eases, the power to legislate is nowhere given, and that is what it would mean if wé should hold such funds are exempt property, and for that reason cannot be subjected, in proper cases, to her individual debts. Red River National Bank v. Ferguson, 109 Tex. 293, 206 S. W. 923; Hedeman v. Newnom, 109 Tex. 472, 211 S. W. 968; Williams v. Doan (Tex. Civ. App.) 209 S. W. 761.

Some of the questions discussed here, likewise, in a way, arise in the case of Ellis et al. v. Emil Blum Co. (Tex. Civ. App.) 242 S. W. 1099, supra, this day decided, and, as applicable here, see articles 2470, 4624, R. S.; Desmond v. Dockery (Tex. Civ. App.) 116 S. W. 115; Taylor v. Murphy, 50 Tex. 291; Harris et al. v. Seinsheimer, 67 Tex. 357, 3 S. W. 307; Bell v. Read, 23 Tex. Civ. App. 95, 56 S. W. 584.

The order of the Oklahoma probate court recited that appellant filed an application “for an order assigning to her the entire estate of said decedent,” and ordered “that the whole of said estate, to wit, the sum of $1,100 and any other amounts not exceeding ithe sum of $1,500, be, and the same is hereby, assigned to Ada Way Ellis for her use and support.” It would seem that the whole estate passed to her without any regard to creditors, if any, or without any reference whatever to appellee|s claim filed there.

We find no reversible error in the ruling of the trial court, and the judgment is affirmed.