Barton v. Montex Corporation

• Decision Date: 27 April 1927
• Docket Number: (No. 7090.)
• Parties: BARTON v. MONTEX CORPORATION.
• Court: Texas Court of Appeals

Page 950

295 S.W. 950

BARTON v. MONTEX CORPORATION.

(No. 7090.)

Court of Civil Appeals of Texas. Austin.

April 27, 1927.

Rehearing Denied June 8, 1927.

Appeal from District Court, Burnet County; J. H. McLean, Judge.

Suit by the Montex Corporation against Lee R. Barton to set aside a default judgment in garnishment. From a judgment setting aside the default judgment, defendant appeals. Appeal dismissed.

Paddock, Massingill & Belew, of Fort Worth, and White, Wilcox, Graves & Taylor, of Austin, for appellant.

Clay Cooke and Jack Rattikin, both of Fort Worth, for appellee.

McCLENDON, C. J.

This was a direct proceeding in equity to set aside a default judgment in garnishment, brought after expiration of the term at which the garnishment judgment was rendered. Since we have reached the conclusion that the appeal must be dismissed because the judgment appealed from was not final, only a brief outline of the proceedings, all of which were in the district court of Burnet county, will be necessary.

In January, 1922, Barton recovered a judgment against one Terpening for $12,191.30, bearing 10 per cent. interest per annum from date. On June 11, 1925, Barton made affidavit in garnishment against appellee, Montex Corporation, of which Terpening was then president, and several other corporations. Separate garnishment writs were issued to each garnishee, returnable to the January term, 1926, of the court. The several writs were not separately numbered and docketed as required by R. S. 1925, art. 4079. The writ against appellee was served on Terpening on June 15, 1925, but no answer was filed by appellee; and on January 11, 1926, judgment by default was rendered against it for $17,038.11, with interest thereon at 10 per cent. per annum, and costs. The judgment was in favor of the other garnishees on their answers.

This suit was instituted by appellee on May 8, 1926, to set aside the default judgment. The petition clearly alleges equitable grounds excusing failure of appellee to answer, which will be noted hereafter, and a meritorious defense to the garnishment writ. The trial court rendered judgment setting aside the default judgment, and permitting appellee to file its answer to the garnishment writ. From this judgment Barton has appealed.

Ever since the decision in Taylor v. Fore, 42 Tex. 256, it has been the uniform holding in this state that the trial court is without power to grant a new trial, as such, after the term has ended at which a judgment is rendered; and the only relief to an injured party other than by appeal, is by plenary suit setting up equitable grounds for the relief sought. In such suit the issues are not tried by piecemeal, but the entire case is opened up on its merits, and the relief prayed for is either denied or granted in the one proceeding. Roller v. Wooldridge, 46 Tex. 485; Overton v. Blum, 50 Tex. 417; Lamb-McAshan Co. v. Ellis (Tex. Com. App.) 270 S. W. 547; Owens v. Foley, 42 Tex. Civ. App. 49, 93 S. W. 1003 (writ of error denied); Cooper v. Cooper (Tex. Civ. App.) 260 S. W. 679; Reed v. Runion (Tex. Civ. App.) 269 S. W. 449.

A judgment in such suit, merely setting aside the former judgment, and not determining the rights of the parties asserted in the former suit, is uniformly held to be not final but merely interlocutory, from which an appeal will not lie.

In Moser v. Hussey, 67 Tex. 456, 3 S. W. 688, the Supreme Court, while adhering to the rule above announced, ordered the original judgment set aside and a trial de novo. But in that case the plaintiff below was the landlady of defendants in an action of trespass to try title in which judgment had been taken by default. She was not a party to the original suit, and had no notice of it, and the decree awarded a writ of possession. The decision is expressly rested upon the common-law doctrine "that, after judgment against his tenant, he [the landlord] has the right, by application to the court in which the judgment was rendered, to have it set aside, and to have himself let in to defend the original action."

Appellee seeks to draw a distinction between a judgment in an ordinary action at law and a garnishment proceeding. There are of course many distinctions between the two characters of action, chief among which is that garnishment is a creature of statute, and jurisdiction is not acquired and the lien of garnishment does not attach unless the statutory prerequisites have been substantially met. Generally speaking, failure in this regard would render a judgment against the garnishee not merely voidable, but absolutely void. Where, however, the failure to follow a statutory requirement is of such character as to amount only to an irregularity which the garnishee might waive, the judgment is merely voidable at his instance, upon proper showing, and, in order to have it set aside after the term at which it has been rendered has closed, the same rules of procedure apply as in other actions. Lamb-McAshan Co. v. Ellis, above, is directly in point on this question.

It only remains to determine whether the default judgment was void or merely voidable.

The grounds upon which it is alleged that the garnishment proceedings were insufficient or defective follow:

(1) That the proceeding against appellee was not docketed separately from the main suit or from the proceedings against the other garnishees. This has been repeatedly held to be a mere irregularity which did not affect the validity of the garnishment proceeding. Ins. Co. v. Seeligson, 59 Tex. 3; Cohn v. Tillman, 66 Tex. 98, 18 S. W. 111; Bell v. Bank (Tex. Civ. App.) 140 S. W. 111; Dodson v. Hardware Co. (Tex. Civ. App.) 162 S. W. 952.

(2) That the writ did not follow the affidavit on which it was sued out, in that it omitted requiring the garnishee to answer as to the number of shares Barton owned in garnishee corporation. The affidavit alleged that garnishee was indebted to, and held effects belonging to, Terpening, and in addition that Terpening was a stockholder in garnishee corporation. The writ, while requiring an answer as to indebtedness and effects, made no reference to shares of stock. We hardly see how this omission could totally invalidate the writ. At most it might excuse the garnishee from answering as to shares of stock owned by Terpening, and it might be ineffectual to impound stock so owned. It is unnecessary to discuss these questions at this time. In respects other than as to shares, the writ followed the affidavit and the statute (article 4081), and was clearly sufficient to require appellee to answer and to support the default judgment.

(3) That the writ was served upon Terpening, as president of appellee, who was also defendant in the main suit and adversely interested to appellee. This fact, along with the other allegations of the petition, afforded sufficient excuse for failure of appellee to file an answer to the garnishment writ. But the service on Terpening was not void, and did not affect the validity of the default judgment; it was only voidable at the election of the garnishee. Ins. Co. v. Storms, 6 Tex. Civ. App. 659, 24 S. W. 1122; Eagle Pharmacy v. Lamb (Tex. Civ. App.) 265 S. W. 594; U. S. Blowpipe Co. v. Spencer, 46 W. Va. 590, 33 S. E. 342; 32 Cyc. 554; Fletcher's Ency. Corp. § 3004.

We are not unmindful of that line of cases which hold absolutely void service upon an officer or agent of a corporation where his adverse interest in the suit is immediate and apparent. See Boston Development Co. v. Clawson, 66 Utah, 103, 240 P. 165, and dissenting opinion in U. S. Blowpipe Co. Case, above. In those cases the party served was either the plaintiff in the suit or the attorney for or assignee of the plaintiff. It is not necessary for us to consider the effect of the service under such circumstances. Here the president of garnishee, on whom the service was had, was defendant in the main suit. A judgment against the garnishee when satisfied would, it is true, operate as a satisfaction of the judgment against him. That, however, would not afford him any substantial relief from his liability, but would merely make the garnishee his creditor instead of the original plaintiff. The garnishee could apply any credits or stock of Terpening to the satisfaction of this liability, or, if it was not indebted to him and he owned no stock therein, the garnishee could hold him liable personally. In any event he would be no better off than if the garnishment had been defeated. There is no necessary adversity of interest between a defendant in judgment and a garnishee corporation of which he is president. He was not therefore disqualified as a matter of law from being served with the garnishment writ; and such service, under the circumstances detailed in plaintiff's petition, was merely voidable.

Appellant directs...