Subscribers to Fidelity Lloyds v. Lyday , 5 S.W.2d 553 ( 1928 )

Error is predicated upon the overruling of appellant's plea to have the issues made and arising under the traversed answer tried in the court in the county of the residence of the garnishee, as provided by article 4096, Revised Statutes 1925. The garnishee, whose answer was controverted, resided, as admittedly shown, in Houston, Tex., and not in Dallas, Tex., where the main suit was tried. In such facts it would seem that the Dallas court had no jurisdiction to proceed to try the issues made and arising under the traversed answer. Illimitable jurisdiction is not given to all district courts over proceedings or actions of this class, namely, after the plaintiff had controverted the answer of the garnishee, who has denied indebtedness or liability to the defendant. Garnishment is purely of statutory authorization, and the courts have no power to afford litigants the benefits of garnishment or to extend the right thereto beyond its statutory limits. By article 4088, R.S. 1925, the court in which the main suit was tried, and out of which the writ of garnishment was issued, is given express authority to enter judgment in favor of the plaintiff against the garnishee for the amount admitted by such garnishee to be due to the defendant. Likewise the court in which the main suit was tried is given express authority to try the issues made under the traversed answer of the garnishee in case the garnishee "is a resident of the county in which the proceeding is pending." But article 4096 provides:

"If the garnishee whose answer is controverted, resided in some county other than the one in which the main case is pending or was tried, and is not a foreign corporation, then upon the filing of a controverting affidavit by any party to the suit, the plaintiff may file in any court in the county of residence of the garnishee having jurisdiction of the amount of the judgment in the original suit, a duly certified copy of the judgment in such original suit and of the proceedings in garnishment, including a certified copy of the plaintiff's application for the writ, the answer of the garnishee, and the affidavit controverting such answer. The court wherein such certified copies are filed shall try the issues made as provided by law."

By the plain terms of the article, the authority to entertain garnishment when it reaches the stage of an adversary proceeding is expressly conferred upon "the court," not where the main case is pending or was tried, but "wherein such certified copies are filed," and which latter "court" is expressly designated as the "court in the county of residence of the garnishee having jurisdiction of the amount of the judgment in the original suit." The language quite strongly evidences the legislative intention and purpose to stop the jurisdiction and bring to an end the authority of the court in which the main case was tried when the garnishment reaches the stage of an adversary proceeding between the plaintiff and the garnishee. The controverting affidavit made to the garnishee's answer makes an adversary proceeding having the elements of an original suit. At that stage the proceeding ceases to be and becomes more than purely a process in aid of an execution of the judgment against the defendant. As often described in judicial decisions, especially when employed to reach choses in action not capable of seizure through execution or attachment, garnishment, when the garnishee's answer is traversed by the plaintiff, becomes in operation and effect a suit by a creditor against the debtor of his debtor. Under this article, as in effect, held, the court in which the main case is pending or was tried is without jurisdiction to try the issues made and arising under the affidavit controverting the answer of a garnishee not a foreign corporation, residing in a county other than the one in which the main case is pending or was tried. General Bonding Casualty Ins. Co. v. Lawson (Tex.Civ.App.) 196 S.W. 346; Reed v. Bank of Purdon (Tex.Civ.App.)211 S.W. 333; American Surety Co. v. Bernstein, 101 Tex. 189, 105 S.V. 990. The article seems to be of like special jurisdictional nature as the article involved in Oilmen's Reciprocal Ass'n v. Franklin, 116 Tex. 59,286 S.W. 195.

The appellee urges that the appellant should be held to have waived the right of trial in Harris county by appearing in the Dallas court by motion to quash the garnishment. The contention of waiver of Jurisdiction may not be sustained, for simply filing a preliminary motion to quash the garnishment would not of itself confer jurisdiction upon the court for all subsequent purposes in view of the statute. American Surety Co. v. Bernstein, 101 Tex. 189, 105 S.W. 990. The waiver of the place to try the controverted issues may not be predicated upon any of the matters in the record. The point made is not comparable to filing a motion to quash citation in ordinary suits, which is controlled by statute (article 2048), or to filing a motion to give, security for costs in ordinary suits, as passed on in St. Louis, S. F. Ry. Co. v. Hale, 109 Tex. 251,206 S.W. 75.

The appellee further insists that the court in Dallas had jurisdiction because two of the underwriters of the policy lived in Dallas County. But these two underwriters were not named as garnishees. The declaration in the application for garnishment may only reasonably be construed as being in plain intendment and effect against the attorney in fact for the Fidelity Lloyds of America. His residence was stated therein to be in Houston, Tex. He was described, as subject to the process of garnishment, as being the attorney in fact of the "Subscribers of the Fidelity Lloyds of America," who were, as declared, "indebted to the defendants, or one of them." Merely stating that "the subscribers to the Fidelity Lloyds of America" are indebted to defendants, without giving their names, may not be regarded as sufficient. It is like setting out the name of a firm without giving the names of the persons who compose it. Smith v. Wallis (Tex.Civ.App.) 45 S.W. 820; Barker v. State Bank (Tex.Civ.App.) 248 S.W. 478; Luse v. Car Co. (Tex.Civ.App.) 261 S.W. 163. And there is no statutory provision for maintenance of proceeding or action directly against the association under the Lloyds plan by its recognized name. The statute especially provides that a proceeding or action shall be "brought against the attorney, or against the attorney and the underwriters, or any one of them," meaning individually against the underwriters. The application for garnishment, however, being by intendment against the attorney in fact, and being sufficiently stated as to him, he would be the only garnishee in the case, and the place of final trial must be had in the county of his residence.

The proceeding is in real effect in the nature of an action on the policy of insurance. The rights and remedies, therefore, under this contract, must depend upon the terms of the agreement. Whether or not there is a liability we may not either indicate or determine, for that is a matter to be decided in the first instance by the trial court having jurisdiction to do so. We merely say that issues arise on the answer and the reply thereto that require the trial thereof by the court of Harris county.

The judgment is reversed and the cause is remanded, with instructions either to dismiss the proceedings or to transfer them to the district court of Harris county.