Sun Mut. Ins. Co. v. Geo. Seeligson & Co.
| Decision Date | 13 February 1883 |
| Docket Number | Case No. 1483. |
| Citation | 59 Tex. 3 |
| Court | Texas Supreme Court |
| Parties | SUN MUTUAL INS. CO. v. GEO. SEELIGSON & CO. |
ERROR from Galveston. Tried below before the Hon. Wm. H. Stewart.
Albert N. Mills, for plaintiff in error, cited R. S., arts. 186, 189, 194, 1215, 1218, 1223, 1225; Drake on Attachments, sec. 697, note, and 640 and cases; Ward v. Haggerty, 25 Tex., 144;Underhill v. Lockett, 20 Tex., 130;Graves v. Robertson, 22 Tex., 131-3;Thomason v. Bishop, 24 Tex., 303;Walker v. Hallett, 1 Ala., 379.
Wheeler & Rhodes, for defendants in error, cited Gillespie v. Redmond, 13 Tex., 13; Drake on Attachments, secs. 695, 697, 713; Ward v. Haggerty, 25 Tex., 144, and Bartlett v. Winkler, 15 Tex., 515.
It is true that there can be no valid judgment against a garnishee unless there be a judgment against the defendant, and for this reason a garnishee is entitled to have an inquiry made as to whether or not, when a court has assumed to render a judgment against a defendant, it had jurisdiction over his person and over the subject matter of the suit; for if it had not, the judgment against the garnishee will be no protection to him.
If, however, the court had jurisdiction of the person of the defendant and of the subject matter of the suit, then the garnishee cannot be heard to question the conclusiveness of the judgment as between the plaintiff and defendant; for the judgment against himself in such case will be full protection to him for any payment he may make under it. Drake on Attachments, 691-698.
It is claimed that the judgment against Rowell Brothers is invalid for the reason that there was no valid service upon the persons composing that firm.
The petition did not give the Christian names of the persons who composed that firm, but alleged that the same were unknown. The citations followed the petition, and were not more definite, but were served upon Henry Rowell and R. P. Rowell. These persons, although cited, made default, and thereby admit the cause of action against them, and the presumption is that they were the persons who composed the firm of Rowell Brothers.
The court had jurisdiction of their persons, and rendered a judgment against them, which is binding upon them.
If the garnishee, in any cause, when he is properly before the court, sought to show that the person cited as the defendant was not in fact the defendant and person to whom he was indebted, he would have the right so to do for his own protection. A valid judgment is shown against Henry Rowell and R. P. Rowell and was a sufficient basis for a judgment against the garnishee. Rogers v. Bradford, 56 Tex., 633; 1 Wash., 372; 19 Wis., 362;3 Harrington, 425;16 Tex., 46;15 Tex., 327;14 Tex., 363; 14 Pa. St., 69.
The garnishee not only has the right to resist a judgment against himself until there is a valid judgment against his creditor, or the person for whom he holds property, but he has the right, and it is his duty, to resist a judgment against himself until the court has jurisdiction over him; otherwise any payment he might make would be a voluntary payment, and the judgment would be no protection to him; for it would not be binding upon him if the court which rendered it had no jurisdiction over him.
Did the court have jurisdiction over the garnishee in this case? We are of the opinion that it did not.
The citation to the garnishee, in so far as is material to the present inquiry, is as follows:
“THE STATE OF TEXAS to the sheriff or any constable of Galveston county, greeting:
WHEREAS, in the district court of Galveston county, in a certain suit wherein George Seeligson and Liberty S. McKinney, who comprise the firm of George Seeligson & Co., are plaintiffs, and Rowell Brothers, of Whitney, Hill county, Texas, are defendants, the plaintiff claiming an indebtedness against the said Rowell Brothers of $520.30, being interest and cost of suit, has applied for a writ of garnishment against the Sun Mutual Insurance Company, and service on James Sorley, agent and attorney of said company, for the purpose of service, who is alleged to be a resident of your county: Therefore, you are hereby commanded forthwith to summon the said James Sorley, agent and attorney for the Sun Mutual Insurance Company, if to be found within your county, to be and appear before the said court at the next term thereof, to be held at Galveston the 7th day of February, A. D. 1881, there and then to answer upon oath what, if anything, the Sun Mutual Insurance Company is indebted to the said Rowell Brothers,” etc.
This citation is defective in that it does not direct the “Sun Mutual Insurance Company” to be summoned to appear...
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