Citizens' Nat. Bank of Lubbock v. First Nat. Bank of Bronte , 14 S.W.2d 1043 ( 1929 )

McOLENDON, C. J.

Writ of error appeal by the Lubboet bant from a default judgment against it as garnishee in favor of the Bronte bant. The garnishment was ancillary to a suit by the Bronte bant against R. 5. and Ellen S. Williams. The writ was served March 23, 1928, and returnable June 4, 1928. April 4, 1928, the garnishee filed an answer, which disclosed an indebtedness to R. S. Williams of $3.26, and answered in the negative- all other questions propounded in the writ. The garnishee made no further appearance in the case, June- 7, 1928, the Lubboet bank filed a pleading containing exceptions to this answer and a prayer that it be stricken out and judgment rendered against the garnishee for the full amount of the judgment in the principal case. These exceptions urged that the answer did not show whether the garnishee was indebted to or held effects of the defendants in the main suit (1) on the return day of the writ; or (2) between the time the writ was served and the first day of the term of court to which the writ was returnable.

The trial court sustained these exceptions, struck out the garnishee’s answer, and rendered judgment against it for the full amount of the judgment in the principal case ($477.-32). A statement of facts 'was filed, signed by the judge alone, and reciting that it was presented by the Bronte bant, and that the garnishee presented no statement of facts. From this statement it appears that no evidence was introduced except the judgment in the main case, the record in the garnishment proceeding, and testimony to the effect that the judgment in the main ease was unsatisfied.

The Lubbock bank contends that the judgment should be sustained on the following grounds:

1. Because the answer was prematurely filed, in that the writ commanded the garnishee to appear on June 4, 1928, “then and there to answer upon oath,” etc., and was therefore defective, in that it did not show the relation of the garnishee to the main defendants with reference to indebtedness or effects on that date. This contention is without merit. R. g. art. 4087, expressly authorizes" the garnishee to answer “on or before appearance day of the term of the court to which such writ is returnable.”

2. Because all indebtedness and effects of the main defendants were impounded from and after service of the writ, and the answer was defective, in that it did not show the garnishee’s relation to the main defendants between the dates when the writ was served and the answer filed. The answer specifically and fully covered each question propounded in the writ, and the writ was in the exact form, as to the questions' propounded, provided in R. S. art. 4081. R. S. art. 4085, requires only in this regard that the garnishee “shall make true answers to the several matters inquired of in the writ of garnishment.” Where the answer complies with the statute and the commands of the writ, it is manifestly sufficient.

Appellee cites in support of the above contentions Gallagher v. Pugh (Tex. Civ. App.) 66 S. W. 118. In that case it was held that an answer filed before the date the writ was made returnable was premature, and the garnishee could be required to make further answer covering the time between filing the answer and return date. It should be borne in mind, however, that that decision was rendered prior to the 1921 amendment to the garnishment statutes (Acts of 1921, c. 105). That amendment for the first time introduced into the statutes the requirement that the garnishee’s answer should be filed on or before appearance day. We are not to be understood as holding that a plaintiff may not, in a proper case and upon a proper proceeding for that purpose, require further disclosure by the garnishee. We do hold, however, that, where the disclosure is in full and literal compliance with the statutes and the writ, the answer is not subject to exceptions and cannot lawfully be stricken out as being either insufficient or evasive.

3. It is contended that, since no exception was taken to the trial court’s order sustaining the exceptions, the correctness of that ruling cannot be urged on appeal.

The judgment shows upon its face that it was rendered, not upon trial, but upon an insufficient answer. This judgment is attacked by proper assignments of error. The answer of the garnishee appearing in every way to fully comply with legal requirements, the trial court’s error in striking it out and rendering judgment against the garnishee in effect by default was clearly an error' of law appearing upon the face of the record.

Aside from this, however, we overrule this contention upon the following grounds:

The application for the writ showed that garnishee was “a banking corporation organized under the banking laws of the United States with its domicile and principal place of business at Lubbock, Lubbock County, Texas.” Under R. S. art. 4096, where the garnishee other than “a foreign corporation, not incorporated under the laws of this state,” is not a resident of the county in which the suit is filed, any contest of the answer must be transferred to and tried in the county of garnishee’s residence.

We are clear in the view that a national banking corporation, domiciled in Texas, is not a foreign corporation within the meaning of this article, and that the provisions thereof for transfer to the county of its domicile apply. See Texas & P. R. Co. v. Weatherby, 41 Tex. Civ. App. 409, 92 S. W. 58; 14a C. J. p. 1214, § 3924, and authorities cited under note 19.

While there are expressions in some of the opinions of the Courts of Civil Appeals to the effect that, where a nonresident garnishee files an answer, it enters its appearance for all purposes, this question was set at rest to the contrary by the Supreme Court in the case of American Surety Co. v. Bernstein, 101 Tex. 189, 105 S. W. 990. That case, it is true, arose prior to the above 1921 amendment, but the amendment worked no change in article 4096 with reference to trial of a contest of garnishee’s answer, in so far as nonresident garnishees other than foreign corporations were concerned. Under the prior act the nonresident garnishee was not even required to file an answer. Under the 1921 amendment an answer was required of all garnishees. Under the prior act, as well as under the 1921 amendment, the voluntary appearance of the garnishee by answer put the nonresident garnishee in court for the purpose only of testing the legal sufficiency of his answer ; but, if the answer was sufficient, he was not required to take further notice of the proceeding.

The trial court’s judgment is reversed, and the cause remanded for further proceedings in accordance with this opinion.

Reversed and remanded.