Stockyards Nat. Bank v. Presnall
| Decision Date | 25 April 1917 |
| Docket Number | (No. 2503.) |
| Citation | 194 S.W. 384 |
| Parties | STOCKYARDS NAT. BANK v. PRESNALL et al. |
| Court | Texas Supreme Court |
Garnishment proceedings by P. A. Presnall and another against the Stockyards National Bank, garnishee. A judgment for defendant was reversed by the Court of Civil Appeals (151 S. W. 873), and defendant brings error. Affirmed.
Wm. J. Berne, of Ft. Worth, for plaintiff in error. Slay, Simon & Wynn, of Ft. Worth, for defendants in error.
This was a garnishment suit by Presnall and Mossner against the plaintiff in error bank, after judgment obtained in another District Court against one Hugh Rogers. The writ of error was granted on the bank's application under, as we find, a misapprehension of the record. The judgment against Rogers, upon which the garnishment was based, was upon citation by publication. In granting the writ we were of the impression that at the time of the filing of that suit and the service by publication Rogers was a non-resident of the state. There is nothing in the record of that cause, however, showing that such was the fact; and the judgment, therefore, cannot for this reason be held void upon collateral attack. Rogers was in fact at the time a resident of the state, according to an agreement contained in the record in the present case.
The record in the suit against Rogers does not disclose that the service of citation was invalid, defeating the court's power to render the judgment, as is the further contention of the plaintiff in error. The judgment was silent as to the service. The record of the cause may therefore be consulted to determine its validity. But upon collateral attack it cannot be determined except by the record. The record shows this and nothing more concerning the service:
The citation was issued July 13, 1907. Its return day was November 25, 1907. The sheriff's return recited that it came to his hands on the day of its issuance, and that it was executed by being published in a newspaper,—the paper being named,—once in each week for four successive weeks. The dates of the publication were then recited and were given as the 11th, 18th, and 25th days of July, 1907, and the 1st day of August, 1907.
It was only necessary that the citation be published once a week for four consecutive weeks before the return day. The four successive weeks referred to in the return plainly included the week of July 13th as the first week of the publication. Had the publication been made upon any day in that week after the citation reached the sheriff full twenty...
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...right of setoff the debt owed to the bank by the customer must be mature, that is, it must have come due. Stockyards Nat'l Bank v. Presnall, 109 Tex. 32, 194 S.W. 384, 385 (1917); McCollum v. Parkdale State Bank, 566 S.W.2d 670, 674 (Tex.Civ.App.--Corpus Christi 1978, no writ). The exceptio......
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