Ratcliff v. Werlein, 15984
| Decision Date | 12 October 1972 |
| Docket Number | No. 15984,15984 |
| Citation | 485 S.W.2d 932 |
| Parties | Elijah W. RATCLIFF, Relator, v. Hon. Ewing WERLEIN, Respondent. (1st Dist.) |
| Court | Texas Court of Appeals |
Elijah W. Ratcliff, Houston, for relator.
No appearance for respondent.
Relator seeks a writ of mandamus ordering a district judge to render a default judgment against a garnishee who is allegedly indebted to the relator's judgment debtor. When the matter was presented in the trial court on May 3, 1972, the respondent made a docket entry that the case was passed because of defective service on the garnishee.
In his verified application for writ of garnishment after judgment, filed on April 14, 1971, Elijah Ratcliff alleged that his assignor was plaintiff in a certain cause that has proceeded to judgment against a named defendant, who does not have property in her possession within this state subject to execution sufficient to satisfy such judgment; that Twelve Oaks Hospital and another named garnishee are indebted to such defendant or have effects of the defendant in their hands. Prayer was for a writ of garnishment against the two garnishees.
The transcript reflects that a writ of garnishment was issued by the district clerk of Harris County on May 27, 1971 to Twelve Oaks Hospital, garnishee. The record on appeal shows that an alias writ of garnishment in this case bears a return reciting that it was executed by the sheriff of Travis County, Texas on June 2, 1971 'by delivering A true copy of this writ to Twelve Oaks Hospital by delivering to Martin Dies, Jr., Secretary of State of Texas as agent for service.' (emphasis added) The hospital has not filed an answer.
In the record from the trial court there is a verified motion for default judgment which contains allegations showing that Twelve Oaks Hospital is a Texas corporation. This motion was sworn to on May 12, 1971 and filed on June 8, 1971 by Elijah Ratcliff, alleging that garnishee 'Twelve Oaks Hospital, . . . has failed to maintain a registered agent or corporate officer within the State of Texas as required by law . . .' There is nothing in the record before us to dispute this allegation.
As to domestic corporations, Article 2.11 of the Business Corporation Act, Vernon's Ann.Civ.St. provides in part:
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Midway Oil Corp. v. Guess
...v. American Pipe & Supply Co., supra; Joseph Russell Realty Co. v. Kenneally, 185 Mont. 496, 605 P.2d 1107 (1980); Ratcliff v. Werlein, Tex.Civ.App., 485 S.W.2d 932 (1972); 62 Am.Jur.2d Process § 3, p. Service on the Secretary of State Plaintiffs received notice from the Secretary of State ......
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DG, In Interest of
...Supply Co., [522 P.2d 996 (Wyo.1974) ]; Joseph Russell Realty Co. v. Kenneally, 185 Mont. 496, 605 P.2d 1107 (1980); Ratcliff v. Werlein, 485 S.W.2d 932 (Tex.Civ.App.1972); 62 Am.Jur.2d Process § 3, p. See the like effect in Bryant, 544 P.2d 1010. In Pease Bros., Inc. v. American Pipe & Sup......