Webb v. Texas Christian University

Since the affirmance of the judgment in this case appellant has filed a motion for rehearing. In addition to the contention made in her brief filed in this court, appellant earnestly urges in said motion, supplemented by an elaborate written argument submitted therewith, that the court erred in affirming the judgment in this case, because it appears from an inspection of the jurat attached to the petition for certiorari that the parties swearing thereto did not do so wholly upon their own knowledge, but partly upon information and belief. While this question was not urged by appellant in the trial court in her motion to dismiss the petition for certiorari, nor in her brief filed in this court, and for which reasons the same might be held to be waived (Williams v. Bailes, 9 Tex. 61 [9 Tex. 61]; Rankert v. Clow, 16 Tex. 11; Ashcroft v. Stephens, 16 Texas Civ. App. 345[16 Tex. Civ. App. 345]; Gildart v. Grumbles, 22 Tex. 18 [22 Tex. 18]), still we do not desire to rest our ruling upon appellant's failure to heretofore present this question, but rather prefer to determine the same upon its merits, and as though it had been properly presented both in the trial court and in this court.

Each of the four affiants who swore to said petition, did so in the following language: "I do solemnly swear that the allegations in the above and foregoing petition or application, not stated upon information and belief, are true, and those stated upon information and belief, I believe to be true." If, therefore, there are sufficient matters alleged in the petition not stated upon information and belief to authorize the issuance of the writ of certiorari, then we think the affidavit is good, otherwise not.

Now, recurring to the petition or application for the writ, we find that it affirmatively alleges the facts upon which it relies for the issuance of the writ, except in two particulars. One of these is the statement "that thereafter on June 25, 1906, said justice, as he informs this corporation through its attorney, without any evidence whatever having been introduced or heard by him, rendered a final judgment by default against this corporation for the sum of $104.06, with six percent per annum interest thereon from date until paid, and all costs of suit," etc. But the petition alleges affirmatively that "a substantial copy of said judgment is hereto attached, marked exhibit 'A' and made a part hereof." Upon examination of said exhibit "A" we find a transcript of the justice's docket which contains the judgment of the Justice's Court rendered in the garnishment proceedings, and in which it is recited that "It further appearing to the court that the garnishee, Texas Christian University, is a resident of McLennan County; that said garnishee has failed to make answer to the writ of garnishment, which was duly and legally served upon its president, E. V. Zollars," etc. The only other statement made in the petition upon information and belief is an allegation to the effect that on May 29, 1906, said Zollars had no further connection in any way with defendant or its school, and on said date permanently removed from the State of Texas to the State of Ohio, "and, as it is informed and believes, became a citizen of said State of Ohio, and has continuously since then been such citizen of said State."

The attack in the petition for writ of certiorari is upon the judgment of the Justice's Court upon the ground that the same was rendered without legal service, and is therefore void. It appears from the petition for the writ and the exhibit thereto attached, that the judgment was by default, and the character of service upon Zollars also appears therefrom. We think both of the allegations which appear to have been made upon information and belief, as shown in plaintiff's petition, related to other matters, not affecting the kind or character of service, and said allegations might have been eliminated therefrom and still have left a good and valid petition for certiorari. All of the other allegations in said petition set forth the facts relied upon affirmatively, and must be held, according to the recitation in the certificate of the officer, as having been affirmatively sworn to by affiants making the same. The judgment of the Justice's Court as sent up in the transcript, shows that the service was made upon Zollars as president of defendant company, and it is held in Spinks v. Mathews, 80 Tex. 374, cited by counsel for appellant, that "in certiorari cases the record of the Justice's Court when sent up will be looked to in connection with the petition." In said case the averments of the petition were modified by the record of the Justice's Court thus sent up. In the case at bar, looking to the transcript of the justice, as attached to the petition as an exhibit, for the purpose of ascertaining what character of service was in fact made upon defendant, and what character of judgment was rendered, we find that the only character of service made of the writ of garnishment was personal service upon Zollars, its alleged president, and that the judgment was by default.

Besides this, the authorities cited and relied upon by appellant in support of her contention that the affidavit was not sufficient, shows that the affidavits in those cases differ materially from the one in the case at bar. In Spinks v. Matthews, supra, the officer's certificate shows that the affiant only swore that the allegations and statements contained in the above and foregoing petition or affidavit were true and correct to the best of his knowledge and belief. In the case of Graham v. McCarty Brown, 69 Tex. 323, a plea of abatement was being considered, and the affidavit to same showed that no part of the same was made according to the knowledge of affiant, but was to the best of his knowledge and belief. It was therefore held bad. In the case of Hunt v. Atchison, Topeka Santa Fe Ry. Co., 28 S.W. 460, the point made was not the same as in the case under consideration, but was as to whether or not the facts contained in the affidavit might be sworn to by any person other than an agent of the plaintiff. In the case of Missouri, K. T. Ry. Co. of Texas v. Pietzsch, 10 Texas Civ. App. 572[10 Tex. Civ. App. 572], it was held that a plea alleging want of notice was not sufficiently verified by an affidavit that as to the statements made therein "I am reliably informed and verily believe them to be true."

Such affidavits in the cases above referred to and cited by counsel for appellant, are not equivalent, in our judgment, to the one in question, where the affiants swear in fact that all the allegations of said petition, "not made upon information and belief, are true," and those made upon information and belief, they verily believe to be true; and where the record, as in the present case, shows that only two matters are stated in the petition upon information and belief, and all others appear to be affirmatively stated, then it must be held that the parties making the affidavit swore positively to the truth of the facts contained in said petition, with the two exceptions; and where these exceptions are as to immaterial matters, and can be eliminated, leaving a sufficient petition, we think that the affidavit is sufficient.

Appellant does not contend that the service of the writ of garnishment, as we understand in this case, was made by leaving a copy thereof at the principal office of the defendant during office hours, but only contends that the petition does not negative the idea that such may have been the case. From the allegations of the petition aided by the transcript, it does appear that the service in fact made was personal service upon Zollars, the alleged president of the company, as commanded in the writ itself. It is recited in the judgment rendered by the justice, that service had been made upon defendant by serving Zollars, the president of defendant company; and the return of the constable making the service shows that it was made upon him as president of the company. And as all these facts appear from the allegations of the petition, together with the exhibit thereto attached, it seems to us that the rule "expressio unius est exclusio alterius," applies, and that where, as in this case, the record discloses that a certain character of service was in fact made, and the further allegation is made that this was the only service had upon the defendant, it is sufficient, and excludes the idea that any other kind or character of service was made upon the defendant than the one alleged.

We have been led to a reinvestigation of the questions involved by reason of the earnest insistence of counsel for appellant that the court had erred in its former opinion affirming the judgment; but after a full and careful review of the same, we feel satisfied that a correct disposition has been made of the case, and therefore overrule appellant's motion for rehearing.

Motion overruled.