Kosminsky v. Raymond

• Decision Date: 10 May 1899
• Citation: 51 S.W. 51
• Parties: KOSMINSKY v. RAYMOND et al.
• Court: Texas Court of Appeals

51 S.W. 51

KOSMINSKY v. RAYMOND et al.

Court of Civil Appeals of Texas.

May 10, 1899.

Appeal from Bowie county court; R. H. Jones, Judge.

Action by Raymond, Hawes & Co. against M. Kosminsky. Judgment for plaintiffs, and defendant appealed. After affirmance of the judgment, defendant moves for a rehearing. Granted, and judgment reversed.

P. A. Turner, for appellant. S. J. Henry, for appellees.

FISHER, C. J.

This is a garnishment proceeding instituted by the appellees against the appellant. The answer of the appellant, as garnishee, complies with the terms of the statute; but the court below dismissed the answer because, it seems, it was sworn to before the attorney of the garnishee, who was at the time a notary public. The only point presented is whether the attorney of the garnishee, who is a notary public, may swear the garnishee to the truth of the statements contained in his answer. In the original opinion¹ we held that the attorney, although a notary public, was not, under such circumstances authorized to administer the oath to the garnishee. A reconsideration of this question convinces us that we erred in this ruling. There are decisions from the courts of this state to the effect that an attorney, as a notary public, cannot take the acknowledgment of a married woman, who is then his client, to a deed, nor take the depositions of witnesses to be used in cases in which he may be an attorney for either of the parties. Taking the acknowledgments, under such circumstances, to deeds or instruments of writing, is, to some extent, judicial in character, as the officer, in taking such acknowledgments, has to exercise some discretion in passing upon the facts that authorize such acknowledgments to be made. It can readily be perceived why an attorney interested in a case should not be permitted to take the depositions of witnesses to be used on the trial. Taking down such testimony is an ex parte proceeding, and the officer who may be charged with the performance of such duty ought not to be interested in the controversy, either as a party or as an attorney, as the opportunity ought not to be given for coloring the testimony in favor of the party who is charged with the duty of reducing the answers of the witness to writing. But the work of swearing a party to the truth of the contents of a paper, and officially attesting the same, is ministerial in character, and involves the exercise of no judicial labor or of discretion; and we believe that making an affidavit before an attorney, such as in the case before us, is not prohibited upon principle, and presents a different case from those in which attorneys take the acknowledgments of their clients to instruments of writing, or the depositions of witnesses in causes in which they are interested. There is no statute in this state which prohibits an attorney from acting as a notary public, and the law, in express terms, confers upon the notary power to administer oaths, and take the affidavits of parties to written instruments. In the case of Ryburn v. Moore, 72 Tex. 86, 10 S. W. 393, a motion was made to strike out an affidavit filed by the plaintiff to the effect that he was unable to give security for costs, because it was made before one of the attorneys of the plaintiff, who was a notary public. The court, in passing upon the question, held that this was no ground for striking out the affidavit. The...