Becker v. Cooper

• Decision Date: 05 December 1929
• Docket Number: (No. 855.)
• Citation: 22 S.W.2d 1083
• Parties: BECKER v. COOPER et al.
• Court: Texas Court of Appeals

22 S.W.2d 1083

BECKER v. COOPER et al.

(No. 855.)

Court of Civil Appeals of Texas. Waco.

December 5, 1929.

Rehearing Denied January 9, 1930.

Appeal from County Court at Law, Dallas County; Paine L. Bush, Judge.

Garnishment proceedings by Hugh J. Cooper and another against the Dallas Development Company, in which E. V. Becker, intervened. Judgment was rendered against garnishee, and from a judgment refusing to quash and abate garnishment, intervener appeals. Affirmed.

See, also, 21 S.W.(2d) 70.

E. V. Becker, of Dallas, for appellant.

Turner, Rodgers & Winn and M. B. Soloman, all of Dallas, for appellees.

GALLAGHER, C. J.

This appeal is prosecuted by appellant, E. V. Becker, from a judgment of the county court at law No. 1, Dallas county, refusing to quash and abate a garnishment proceeding instituted by appellees Hugh J. Cooper and F. E. Simms, judgment creditors of appellant, against Dallas Development Company. Appellees alleged in their affidavit that the garnishee, Dallas Development Company, was a corporation, duly incorporated; that appellant was its president; that it was indebted to appellant and had in its hands effects belonging to him; and that he owned shares therein. A writ of garnishment was issued on said affidavit and served on appellant as such president. Appellant intervened in the cause and filed a motion to quash the proceeding and a plea in abatement thereof. The garnishee filed no answer but wholly made default. The court rendered judgment by default against said garnishee and overruled appellant's motion and plea. Appellant filed a motion for new trial, which was overruled. He then perfected this appeal.

Opinion.

Appellant presents as ground for reversal the action of the court in overruling his motion to quash the affidavit for garnishment. Appellant intervened in this proceeding solely in his capacity as defendant in the judgment on which the same is based. He contends that said affidavit should have been quashed on the ground that it did not show whether appellees recovered said judgment in their individual capacity, as a partnership, or otherwise, and on the further ground that the amount due on said judgment as stated in the affidavit was excessive in the sum of $75. The affidavit for garnishment stated that appellees Hugh J. Cooper and F. E. Simms recovered a judgment against appellant in the original suit in the sum of $608.33, that said judgment was unsatisfied, and that the sum of $608.33 thereof was then unsatisfied. The original judgment is not contained in the statement of facts nor in the transcript. Said judgment was, of course, the best evidence of the capacity in which appellees recovered therein, and of the amount of their recovery. The court was authorized to take judicial notice of the existence and contents of said judgment. Kelly v. Gibbs, 84 Tex. 143, 146-148, 19 S. W. 380, 563; Plowman v. Easton, 15 Tex. Civ. App. 304, 39 S. W. 171, 173; Jeffries v. Smith, 31 Tex. Civ. App. 582, 73 S. W. 48; Baze v. Island City Mfg. Co. (Tex. Civ. App.) 94 S. W. 460, 461; Texas & P. Railway Co. v. W. C. Powell & Son (Tex. Civ. App.) 147 S. W. 363, 364. The court overruled appellant's motion to quash, and in the absence from the record of such original judgment, we must presume that appellees recovered therein in their individual capacity, as indicated by the affidavit, and that the amount of such judgment and the amount due thereon at the time such affidavit was filed were correctly stated therein. Appellant's contention is overruled.

Appellant presents as ground for reversal the action of the court in overruling his plea in abatement. He contends in this connection that inasmuch as the charter of the garnished corporation has been forfeited and annulled by a decree of a court of competent jurisdiction, it could not be summoned or charged as garnishee in its corporate name; that service of the writ of garnishment upon him as president thereof was insufficient; and that service of such writ should have been upon each of the directors as statutory trustees, respectively. Appellant alleged in his plea in abatement that the Dallas Development Company was not at the time of the institution of these proceedings a...