Lash v. Morris County Bank

• Decision Date: 23 December 1899
• Citation: 54 S.W. 806
• Parties: LASH v. MORRIS COUNTY BANK.
• Court: Texas Court of Appeals

54 S.W. 806

LASH v. MORRIS COUNTY BANK.

Court of Civil Appeals of Texas.

December 23, 1899.

Appeal from district court, Morris county; J. M. Talbot, Judge.

Action by the Morris County Bank against W. P. Lash. Judgment for plaintiff. Defendant appeals. Affirmed.

R. D. Hart and Estes & King, for appellant.

CONNER, C. J.

Appellee instituted this suit in the district court of Morris county on the 7th day of December, 1898, against appellant upon a certain promissory note, and on the same day filed affidavit and bond in garnishment against the Pacific Express Company. The return to the writ, which was served the same day, shows that it was executed by "delivering to the Pacific Express Company, by handing to J. B. Baker, in person, —its local agent at Naples, Texas,—a true copy of this writ." Naples is in Morris county; and appellee, as appears from the allegations of the original petition, is a partnership composed of T. B. Caldwell, J. H. Mathews, C. L. Mathews, J. C. Martin, J. W. Lewis, Nat Wright, A. B. Galloway, Mrs. Mattie Galloway, C. H. Pope, and C. C. Carr. On April 5, 1899, appellant, as defendant in the suit against him, filed a replevy bond in accordance with the statute, and collected of the Pacific Express Company the funds garnished. On April 19, 1899, when the case against him was regularly called for trial, appellant appeared and urged a motion to quash the garnishment proceedings, which was overruled, and judgment final rendered against him, from which this appeal was taken.

The only question presented for our consideration is the sufficiency of the garnishment proceedings. In the motion to quash, and here, it is urged that the affidavit therefor is insufficient, because "the affidavit for garnishment fails to allege the residence of the garnishee, the Pacific Express Company, and does not allege that it had and maintained an office or transacted any business in, or had an agent representing it in Morris county, Texas, and no facts are alleged showing the domicile of said garnishee, or that would give the district court of Morris county jurisdiction over it upon the writ served herein." The averments of the affidavit relating to this subject are as follows: "* * * That he has reason to believe, and does believe, that the Pacific Express Company, a corporation which has a local agent who resides in Morris county, in the state of Texas, is indebted to the said defendant, and that it has in its hands effects belonging to said defendant, W. P. Lash. * * *" The evident purpose of the statutory requirement that the application for a writ of garnishment shall state the name and residence of the garnishee is that the court may be able to determine the county to which the writ should be directed, and whether on final hearing, in the absence of an answer, it will be authorized to enter judgment by default, or will be required to issue commission to take his answer to some other county. See Sayles' Civ. St. 1897, arts. 219, 220, 228, 229. We think the affidavit before us in terms substantially meets this purpose, and fulfills the requirements of the law. The affidavit alleges that the garnishee is a "corporation," and hence, whether foreign or domestic, may be sued in any county in this state in which it has "an agency or representative." See Id. art. 1194, cls. 23, 25. A local "agent," whose residence in Morris county is alleged, must certainly be held to be a "representative," within the meaning of the law; and if this allegation was true the citation to Morris county was authorized,...