Commonwealth of Massachusetts v. United N. & S. D. Co.

• Decision Date: 16 December 1942
• Docket Number: No. 8012.,8012.
• Citation: Commonwealth of Massachusetts v. United N. & S. D. Co., 168 S.W.2d 226, 140 Tex. 417 (Tex. 1942)
• Parties: COMMONWEALTH OF MASSACHUSETTS v. UNITED NORTH & SOUTH DEVELOPMENT CO. et al.
• Court: Texas Supreme Court

168 S.W.2d 226

COMMONWEALTH OF MASSACHUSETTS v.UNITED NORTH & SOUTH DEVELOPMENT CO. et al.

No. 8012.

Supreme Court of Texas.

December 16, 1942.

Rehearing Denied February 24, 1943.

Error from Court of Civil Appeals of Third Supreme Judicial District.

Garnishment proceeding by the Commonwealth of Massachusetts against the United North & South Development Company, garnishee, wherein Edgar B. Davis intervened. A judgment quashing the garnishment was affirmed, 160 S.W.2d 563, and the Commonwealth of Massachusetts brings error.

Affirmed.

Robert T. Bushnell, Atty. Gen., of Massachusetts, Jacob Lewiton, Asst. Atty. Gen., of Massachusetts, and Trueheart, McMillan & Russell, of San Antonio, for the Commonwealth, petitioner.

John W. Stayton, of Austin, and James D. Williamson, of Waco, for C. B. Rayner, respondent.

R. B. Ellis, of San Antonio, for garnishee, respondent.

S. J. Brooks, Clinton G. Brown, and W. L. Matthews, all of San Antonio, and Fred Blundell and Tom Gambrell, both of Lockhart, for Davis, respondent.

ALEXANDER, Chief Justice.

This is a garnishment proceeding ancillary to the main suit this day decided by us in the case of Commonwealth of Massachusetts v. Edgar B. Davis, Tex.Sup., 168 S.W.2d 216.

The Court of Civil Appeals stated the facts of this case and its holding on the principal point involved therein as follows:

"This garnishment suit or proceeding is ancillary to Commonwealth of Massachusetts v. Edgar B. Davis, 160 S.W.2d 543 this day decided by this court, and wherein a full statement of the nature and result of the litigation is made.Suffice it to say here that in this ancillary garnishment suit or proceeding the trial court quashed the garnishment upon the motion and plea of garnishee and intervening defendant, Edgar B. Davis, because of alleged defects in the affidavit and garnishment bond; and this appeal is by appellant Commonwealth alone from the judgment quashing the garnishment.

"The first ground upon which the trial judge quashed the bond was because of the limitation by the sureties of their liability in the bond obligation itself.It provides that the principal, appellant Commonwealth, and the sureties shall be bound only in amounts as follows: (1)`The principal and the Fidelity and Deposit Company of Maryland in the amount of Two Hundred Sixty-six Thousand, Six Hundred Sixty-six Dollars and Sixty-seven Cents ($266,666.67), and no more.'

"In like manner the National Surety Corporation and the United States Fidelity and Guaranty Company each limited its liability in the bond to $266,666.66, `and no more'; and the Aetna Casualty and Surety Company, the Indemnity Insurance Company of North America, and the Fidelity and Casualty Company of New York each limited its liability in the bond to $200,000, `and no more.'

"The particular statute involved is Art. 4077, R.S.1925, which provides that before a writ of garnishment may issue — `* * * the plaintiff shall execute a bond, with two or more good and sufficient sureties, to be approved by the officer issuing the writ, payable to the defendant in the suit, in double the amount of the debt claimed therein, conditioned that he will prosecute his suit to effect and pay all damages and costs that may be adjudged against him for wrongfully suing out such garnishment.'

"Appellant cites in addition, and as bearing upon the proper interpretation of this statute, portions of Arts. 4969, 4970, which read as follows:

"`Private corporations may be created * * * to act as surety and guarantor of the fidelity of employees * * * also upon any bond or bonds that may be required to be filed in any judiciary proceedings * * *.Any such bond may be accepted and approved by the officer charged by law with the duty of accepting and approving the same without being signed by other securities than such corporation.When any such bond shall exceed fifty thousand dollars in penal sum, the officer charged by law with the duty of approving and accepting such bond, may require that such bond be signed by two or more surety companies * * * and any statute or law to the contrary, or requiring any such bond to be signed by two or more good and sufficient sureties, shall be governed and controlled by the provisions of this article.* * *

"`Whenever any bond * * * required or permitted to be made, * * * such bond * * * may be executed by a surety company, qualified as hereinbefore provided; and such execution by such company of such bond * * * shall be in all respects a full and complete compliance with every law * * * that such bond * * * shall be executed by one surety or by one or more sureties * * * and all courts * * * shall accept and treat such bond * * * when so executed by such company, as conforming to, and fully and completely complying with, every requirement of every such law * * *.'

"The trial court construed the first statute as requiring `a bond, with two or more good and sufficient sureties' each bound jointly and severally with the principal `in double the amount of the debt claimed,' and held that the garnishment bond in the instant case did not comply with this requirement of the statute, because it was executed by six corporate sureties, neither of which, jointly...