Baumgardner v. Southern Pac. Co.

• Decision Date: 28 October 1943
• Docket Number: No. 4335.,4335.
• Citation: 177 S.W.2d 317
• Parties: BAUMGARDNER v. SOUTHERN PAC. CO.
• Court: Texas Court of Appeals

177 S.W.2d 317

BAUMGARDNER v. SOUTHERN PAC. CO.

No. 4335.

Court of Civil Appeals of Texas. El Paso.

October 28, 1943.

Rehearing Denied December 2, 1943.

Appeal from County Court at Law, El Paso County; M. V. Ward, Judge.

Action by Charles E. Baumgardner against the Southern Pacific Company for wages earned. From a judgment for defendant, plaintiff appeals.

Affirmed.

James R. Harper and John T. Hill, both of El Paso, for appellant.

Kemp, Smith, Goggin & White and Norman C. Hall, all of El Paso, for appellee.

McGILL, Special Commissioner.

This is an appeal from a judgment of the El Paso County Court at Law. The suit originated in the Justice Court of El Paso County. Appellant, Baumgardner, sought to recover from appellee, Southern Pacific Company, $122.17 due him as wages earned while he resided in El Paso County and was employed by appellee as a brakeman-conductor on its line of railroad between El Paso and Lordsburg, New Mexico. Appellee plead in bar payment of a judgment of the Superior Court of Yuma County, Arizona, rendered against it as garnishee, in a garnishment proceeding instituted in that court for the enforcement of a prior judgment for alimony, awarded appellant's wife in a divorce proceeding in that court. Trial to the court, without a jury, resulted in a judgment that appellant take nothing and that appellee recover its costs.

Appellant's points on which he predicates his appeal are not stated as required by 418(b), Texas Rules of Civil Procedure, but by various assignments and propositions he contends, in substance, that the judgment rendered in the garnishment proceeding was and is a nullity, since by contract express or implied his wages were payable in El Paso County, and the Arizona court therefore acquired no jurisdiction in the garnishment proceeding; that the claim asserted against appellant in the garnishment proceeding, being based on a judgment for permanent alimony, conflicts with the policy of the laws of this State and is not enforcible in Texas, and a judgment based thereon is not within the "full faith and credit" clause of the Federal Constitution, Art. IV, Sec. 1, and the court erred in giving effect to it as a bar to appellant's suit; also that appellee will not be protected by satisfaction of the judgment rendered against it in the garnishment proceeding because it failed to set out in its answer in that proceeding the facts constituting a defense to the issuance of the writ, since appellant was not cited and did not voluntarily answer the writ.

The court filed elaborate findings of fact, all of which are amply supported by the evidence. From such findings it appears that at all relevant times appellee is and was a Kentucky corporation operating a line of railroad as a common carrier from El Paso, westward through the States of New Mexico and Arizona; that it maintained freight and passenger stations in Yuma County, Arizona, with agents there upon whom service of process might be had. That on or about August 14, 1940, appellant, who at that time had been a resident of Arizona for eight or nine years, instituted suit for divorce in the Superior Court of Yuma County against his wife, Katy M. Baumgardner, a resident of the State of Iowa. In that suit a decree was rendered on February 8, 1941, granting Mrs. Katy M. Baumgardner a divorce from appellant on her cross-action and decreeing that appellant pay her $30 per month on or before the 20th day of each month beginning February 20, 1941, as permanent alimony. On May 21, 1941, Mrs. Baumgardner filed in the Superior Court an affidavit asserting that no portion of such alimony had been paid, and on the same date the court issued, and the sheriff of Yuma County served appellant with a citation returnable June 6, 1941, to show cause why he had defaulted in said alimony installment payments. On May 23, 1941, appellant, who was employed by appellee, procured a transfer of his employment from Yuma to El Paso, and since May 26, 1941 he has been a resident of El Paso County, employed by appellee on its trains running out of El Paso to Lordsburg, New Mexico, and return. He failed to appear in the Superior Court to show cause why he had defaulted in the alimony installment payments. On July 14, 1941, on affidavit of Mrs. Baumgardner's attorney to effect that no part of the alimony installments falling due on the 20th days of February, March, April, May and June, 1941, had been paid and that there was the sum of $150 past due on the judgment of February 8th, and other statutory requirements, writ of garnishment was duly issued by the clerk of the Superior Court of Yuma County and served on appellee's agent at Yuma. On July 22, 1941, appellee filed its answer to such writ in which it alleged that at the time the writ was served it owed appellant $122.17. The answer did not disclose that the indebtedness was for current wages, exempt under the laws of Texas or Arizona. On September 6, 1941, the Superior Court rendered judgment against appellee on its answer in favor of Katy M. Baumgardner for $112.17, allowing appellee to retain $10 as a reasonable fee for preparing its answer. This judgment was fully paid and satisfied by appellee on February 9, 1943. Other facts appearing from the court's findings will be referred to where deemed material.

The court found that there was no express contract between appellee and appellant which bound appellee to deliver appellant's pay roll voucher to him only at El Paso, although it was customary to do so unless request was made to deliver it elsewhere, in which event it would be delivered where requested, if the place designated was at a point on appellee's line. Under these findings, there was no "special limitation or provision in respect to the payment," such as to require appellant to sue for his wages in El Paso County. He could undoubtedly have instituted suit against appellee for the debt in Yuma County, Arizona. Therefore, the Superior Court of Yuma County had jurisdiction of the res for garnishment; i.e., the debt of appellee to appellant. Chicago, R. I. & P. R. Co. v. Stur, 174 U.S. 710, 19 S.Ct. 797, 43 L.Ed. 1144; Home Ins. Co. v. Dick, Tex.Com.App., 15 S.W.2d 1028, at page 1031. That court also had jurisdiction to render judgment against appellee on the answer filed by it, although no process had been issued or served, actually or constructively, on appellant in the garnishment proceeding. Baltimore & O. R. Co. v. Hostetter, 240 U.S. 620, 36 S.Ct. 475, 60 L.Ed. 829.

Included in the court's findings of fact are provisions of the Arizona Constitution and laws, showing the Superior Court's jurisdiction of actions for divorce, and power to award permanent alimony in the final decree of divorce; authority of clerks of the superior courts to issue writs of garnishment where the plaintiff has a judgment and makes the required affidavit, and the decision of the Supreme Court of that State in Adair v. Superior Court, 44 Ariz. 139, 33 P.2d 995, 996, 94 A.L.R. 328, holding that "installments of alimony become vested the moment they are due and the court has no power to modify the decree as to them." In rendering its judgment of September 6, 1941 against the garnishee, the Superior Court of Yuma County...