Modern Dairy & Creamery Co. v. Blanke & Hauk S. Co.

• Decision Date: 10 February 1909
• Citation: 116 S.W. 154
• Parties: MODERN DAIRY & CREAMERY CO. v. BLANKE & HAUK SUPPLY CO.
• Court: Texas Court of Appeals

116 S.W. 154

MODERN DAIRY & CREAMERY CO. v. BLANKE & HAUK SUPPLY CO.

Court of Civil Appeals of Texas.

February 10, 1909.

Appeal from Bexar County Court; P. H. Shook, Judge.

Garnishment proceedings in a suit by the Blanke & Hauk Supply Company against the Modern Dairy & Creamery Company. From a judgment overruling a motion to set aside the garnishment, and from a judgment rendered against the garnishee, defendant appeals. Reversed, and cause remanded, with directions.

T. H. Ridgeway, for appellant. Keller & Keller, for appellee.

FLY, J.

Appellee obtained a writ of garnishment against J. F. Kline. He did not answer, but appellant filed a replevy bond, and filed a motion to quash and set aside the garnishment proceedings. The motion was overruled, and judgment rendered against the garnishee.

Article 219, Rev. St. 1895, which gives the requisites of an affidavit for a writ of garnishment, does not require a statement of the fact that the party sued is a corporation, copartnership, or joint-stock company. If the garnishee is a corporation, copartnership, or joint-stock company, and the defendant is the owner of shares in such company, or has an interest therein, then that statement is required. Such is the ruling in the cases cited by appellant. Underwood v. Bank (Tex. Civ. App.) 62 S. W. 943. This is a suit against J. F. Kline, and appellant merely took his place by means of the replevy bond. In the affidavit for garnishment it was stated that the Blanke & Hauk Supply Company had "instituted a suit for debt against the Modern Dairy & Creamery Company in the county court of Bexar county, Texas, for two hundred and forty-seven dollars and thirty-four cents ($247.34) and interest," and appellant attacked the affidavit for uncertainty as to the amount of the debt. It is required, in cases like the present, where a debt is sued for, that the affidavit for garnishment shall state the amount of the debt, as well as that it is just, due, and unpaid, a strong reason therefor being that in such a case a bond in double the amount of the debt claimed is required, and the amount of the bond can only be ascertained by a definite statement of the amount of the debt. It has been held by this court in the case of Sullivan & Co. v. King (Tex. Civ. App.) 80 S. W. 1048, that an affidavit for garnishment was lacking in certainty, in which the debt was stated to be a certain sum, with interest and attorney's fees, and the action of the trial court in quashing the garnishment proceedings was approved. It was intimated, however, that resort might have been had to the petition in the original suit to aid the affidavit for garnishment, had there been anything therein that would have aided the affidavit. We do not doubt, as has been held in regard to attachments, that the petition in the main suit can be used in making certain the amount of the debt. Cleveland v. Boden, 63 Tex. 103; Willis v. Mooring, 63 Tex. 340; La Force v. Dry Goods Co., 8 Tex. Civ. App. 574, 29 S. W. 75.

In the affidavit for garnishment the style of the original suit is given, and the affiant states "that he is the attorney for the Blanke & Hauk Supply Company, the plaintiff in the above-entitled cause, and makes application for a writ of garnishment against J. F. Kline; that Blanke & Hauk Supply Co., a private corporation, has instituted a suit for debt against the Modern Dairy & Creamery Company in the county court of Bexar county, Texas, for two hundred and forty-seven dollars and thirty-four cents ($247.34) and interest." It was further stated "that said debt is just, due, and unpaid." If the petition will supply the necessary data with which the amount of the debt can be made certain, then the affidavit can be sustained; otherwise it cannot. The affidavit followed the language of the...