Ellis v. Lamb-Mcashan Co.

CONNER, C. J.

This appeal is from an order of the district court of the Seventy-Eighth judicial district at Wichita Falls, granting a temporary writ of injunction restraining the sale of certain property situated in the city of Houston, Tex., known as “the Baconfield Apartments.”

The petition, together with its exhibits, is very lengthy, and the appellants’ complaining brief, also quite lengthy, is based upon alleged deficiencies in the petition. The order appealed from, of course, is interlocutory, and, whatever our ruling, the case upon its merits will come on for hearing and determination at the next regular term of said court, which begins on the first Monday in March next, to wit, March 3, 1924. See Acts 1915, c. 6, § 1; Complete Texas Statutes (Vernon’s Ann. Civ. St. Supp. 1918) art. 30, subd. 78. In view, therefore, of the very probable early trial of the case we have-concluded to dispose of this appeal briefly.

In substance, it is alleged, among other things, that prior to the 3d day of October, 1922, appellant Ellis had secured a judgment against J. L. Wilkin and R. H. Wilkin for the sum of $33,751, and upon that date he had caused a writ of garnishment to be issued out of the district court of Wichita county for the Seventy-Eighth judicial district, upon allegations that appellee, the Lamb-McAshan Company, a private corporation, was indebted to said J. L. and R. H. Wilkin and others, and had effects belonging to them and each of, them, and that each of said judgment defendants were owners of shares in said company and had an interest therein. It is further alleged that, the writ was directed to the sheriff or any constable of Harris county to appear before said court at the next term to be held at Wichita Falls, “on the 12th day of March, 1923,” then and there to answer, etc.

It is further alleged that said writ of gar-, nishment was served by delivering a true copy of the writ to “George E. Wilkin, president of the Lamb-McAshan Company,” at 7:20 o’clock p. m. on the 9th day of October,' 1922; that in fact said George E. - Wilkin, at the time of said service or at any other time, was not' the president of sáid company nor an officer thereof, but that, notwithstanding such fact, upon the return of the writ the district court, to which- the writ had been made returnable as stated, entered its judgment against said company for the sum of $39,910, reciting that George E. Wil-kin was the president of said company and that due service upon said company had been otherwise made, notwithstanding the fact that an attorney representing said company in other cases before said court had, as an amicus ourise only, filed and called the attention of the court to the affidavit of said Wilkin and of S. E. McAshan, one of the original incorporators, to the effect that George E. Wilkin had never at any time been a stockholder in or an officer of the Lamb-McAshan Company; that the service upon George E. Wilkin was at 7:20 o’clock p. m. on October 9, 1922, while he was at his residence' after office hours, and not at the office of the Lamb-McAshan Company; that the only connection that George E. Wil-kin ever had with said Lamb-McAshan Company was that of “superintendent of the Baconfield Apartments.”

It was alleged that the district court, in rendering said judgment, and in its finding and recitals of due service, etc., of the writ of garnishment, was misled, and said judgment and recitals fraudulently procured by means of false and perjured testimony of persons unknown to the petitioner. It was further alleged that in fact and in truth said company was not indebted to the said J. L. and R. H. Wilkin and had no effects of those persons in its possession, and that neither owned stock in the corporation, and that appellee herein had no notice of the fact of the rendition of said judgment against it until long afterwards, to wit, until the threatened levy of execution sought to be enjoined in this case, which was in December, 1923, too late to have moved to set aside said judgment against it or to have appealed or sued out a writ of error therefrom, it being alleged in this connection that some time after the service of the writ of garnishment on George E. Wilkin, an officer of the appellee company had inquired and been informed by the clerk of the district courj; of the Seventy-Eighth judicial dstriet that nothing had been done in the case.

It was further alleged that the first day of the term of court at which said writ of garnishment was legally returnable was on the 5th day of March, 1923, and not the 12th day of that month, as commanded by the writ, because of which, and because of the fraud and perjury alleged, the temporary writ of injunction was prayed for.

If true, as alleged, that the judgment complained of was procured by means of false and perjured testimony, it cannot be doubted, we think, that appellee in due time and in a proper proceeding would be entitled to have the judgment set aside. See McMurray v. McMurray, 67 Tex. 665, 4 S. W. 357, and cases there cited; Ralls v. Ralls (Tex. Civ. App.) 256 S. W. 695; McGloin V. McGloin, 70 Tex. 634, 8 S. W. 305.

As alleged, the writ of garnishment was defective. As required by the statutes (article 274), the command of the writ should have been to summon the garnishee company “to appear before the court out of which the same is issued, upon the first day of the ensuing term thereof,” which it was alleged was upon the 5th day of March, 1923, instead of upon the 12th day of March ás directed in the writ complained of. The requirement of the statute is imperative. See Gilbert Book Co. v. Pye, 43 Tex. Civ. App. 183, 95 S. W. 8; Le Master v. Dalhart Real Estate Agency, 50 Tex. Civ. App. 302, 121 S. W. 185; Taylor v. Taylor (Tex. Civ. App.) 157 S. W. 1184.

Neither was the service of the writ sufficient if the facts alleged in the petition relating thereto are true, as we must assume for the purposes of this appeal. The appel-lee company was and is a private corporation, under the laws of the state of Texas, as shown by its articles, a certified copy of which is attached to the petition as an exhibit with S. E. McAshan, E. C. Lamb, and R. E. Field as incorporators, and article 1860, Rev. Statutes, in so far as pertinent, provides that:

“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,” etc.

The averments of the petition distinctly negative any such service. One at least of appellant’s principal contentions is based upon the facts that by the affidavit of George E. Wilkin, made a part of the petition, it appears that he was “superintendent of the Baconfield Apartments” at the time of the service of writ of garnishment, and that an attorney, employed by the appellee company in some other cases and possibly to prepare and file the affidavits referred to as filed in the district court prior to the entry of the judgment against it, appeared and called the attention of the court tq said affidavit. It is contended in effect that it therefrom appears that the appellee company knew of the issuance of the writ and of its service, and voluntarily appeared through its counsel prior to the rendition of the judgment.

By its articles the appellee was formed—

“for the purpose of the erection and repair of any building and improvements, and the accumulation and loaning of money for said purpose, and for the purchase, sale, and subdivision of real property in towns, cities, and villages and their suburbs, not extending more than two miles beyond their limits, and for the accumulation and loaning of money for that purpose.”

We do not think we can assume that George E. Wilkin was an officer or agent of appellee corporation from the mere fact that he was the “superintendent of the Baconfield Apartments in the city of Houston.”

In the ease of Tompkins Machine & Implement Co. v. Schmidt (Tex. App.) 16 S. W. 174, it was held that service of a writ of garnishment on the “manager” of a domestic corporation was not sufficient; the court refusing to presume that the manager of the company was either the president, secretary, treasurer, or the local agent thereof. To the same effect is the decision of this court in Lathem Co. v. Radford Groc. Co., 54 Tex. Civ. App. 510, 117 S. W. 909.

Appellee’s petition distinctly negatives the presumption that the service of the writ complained of . was made by levying the copy of the same at the principal office of the company during office hours and, the service otherwise appearing to have been contrary to the statutes, was fatally defective. Nor do we think the judgment can be upheld on the theory that the officers of appellee company had knowledge of the issuance of the writ of garnishment and of its service on George E. Wilkin, and of the further fact that its attorney employed in other cases called attention of the court to the affidavits denying George E. Wilkin was president. As we understand the ruling of our courts, a strict observance of the proceedings specified in the statutes is imperative in garnishment cases to the end that the rights of the judgment debtor.may not be invaded.

In the ease of Harrell v. Mexico Cattle Co., 73 Tex. 612, 11 S. W. 863, it was held that actual notice of the issuance of the writ of garnishment would not supply the want of due service of the writ. It was held further in that case that the garnishe'e could not accept service or voluntarily answer so as to affect the right of the defendant in the original suit or judgment or that of his creditors. It was said that the writ Of garnishment takes effect so as to fix a prior claim upon the fund which is sought to be reached, only by the service of the writ in the manner provided by law, and that until this is done the garnishee cannot be in any manner affected by the suit. See, also, of like effect, City of Sherman v. Shobe, 94 Tex. 126, 58 S. W. 949, 86 Am. St. Rep. 825; Freeman v. Miller, 51 Tex. 443.

Appellants filed no answer to the petition complained of, and on the whole we see no sufficient reason to disturb the discretion of the lower court as exercised, and accordingly affirm the judgment.