Walker v. Illinois Torpedo Co. , 1925 Tex. App. LEXIS 1048 ( 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 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, 74 Tex. 56, 11 S.W. 1046, it was said:

"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., 73 Tex. 616, 11 S.W. 863; Gilbert Book Co. v. Pye,43 Tex. Civ. App. 183, 95 S.W. 8; First Nat. Bank v. Cole (Tex.Civ.App.)264 S.W. 926; Tompkins Mach. Imp. Co. v. Schmidt (Tex. Sup.) 16 S.W. 174; Ball v. Bennett, 21 Tex. Civ. App. 399, 52 S.W. 618.

In Latham Co. v. Radford Gro. Co., 54 Tex. Civ. App. 510, 117 S.W. 909, this court held that the service of citation upon the "manager" of a corporation would not support a default judgment against the corporation, since article 1860 did not authorize service upon such a representative, and since it could not be assumed that the manager of the company was either president, secretary, treasurer, or agent of the company. To the same effect was the decision in the case of Tompkins Mach. Imp. Co. v. Schmidt (Tex. Sup.) 16 S.W. 174.

In Liberty Brand Canning Co. v. American Stores Co., 1 W. W. Har. (Del.) 492, 115 A. 193, the superior court of Delaware held that service of process on an assistant secretary was not sufficient under a statute authorizing service upon the secretary of the corporation. In the opinion in that case numerous decisions of other states are cited in accord therewith, including Winslow v. Staten Island R. R. Co., 51 Hun, 298, 4 N.Y.S. 169, in which it was held that service upon the "assistant treasurer" of a corporation was not sufficient to bind the corporation under a statute authorizing service upon the "treasurer." And in the latter case the court said:

"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, 43 Tex. Civ. App. 176, 95 S.W. 594, it was held that such a defendant was entitled to assert defects in the writ of garnishment after he had given such a replevy bond, and that it mattered not what disposition he made of the funds replevied. We believe that the sureties on the replevy bond stand in the same shoes as their principals under the statute referred to, and that they have the same right to complain of the insufficiency of the service of the writ of garnishment. We also concur in the decision in Fleming v. Pye that the replevy of the funds owing by the garnishee in this case did not operate as an estoppel or waiver of the plain statutory right given a defendant to question the sufficiency of the garnishment proceedings to impound the funds sought to be reached.

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.