Traders' Ins. Co. v. Chase

• Decision Date: 26 June 1895
• Citation: 31 S.W. 1103
• Parties: TRADERS' INS. CO. et al. v. CHASE et ux.
• Court: Texas Court of Appeals

31 S.W. 1103

TRADERS' INS. CO. et al. v. CHASE et ux.

Court of Civil Appeals of Texas.

June 26, 1895.

Appeal from district court, Tarrant county; S. P. Greene, Judge.

Garnishment by John F. Swayne against the Traders' Insurance Company on certain judgments. E. E. Chase and wife intervened. The garnishee appeals from a judgment sustaining a demurrer of the interveners to its plea. Affirmed.

Samuel T. Camp, for appellants. John W. Wray, for appellees.

STEPHENS, J.

This case differs from that of Swayne v. Chase (Tex. Civ. App. and Sup.) 29 S. W. 418, and 30 S. W. 1049, only in that Swayne no further prosecutes the writ of error, and the insurance company pleads a provision of its policy to the effect that in case of garnishment or attachment in consequence of any debt or default of the said E. E. Chase, any suit and all proceedings therein in behalf of the assured, his representatives or assigns, shall be stayed until said garnishment or attachment suit shall have been finally decided and disposed of, and that the company shall have the right to apply to the appropriate court for such stay. The pendency of garnishment proceedings in New York and Connecticut, though subsequent to that of Swayne herein, was alleged under oath, followed by a prayer for the stay as provided in the policy. To the action of the court in sustaining a demurrer to this plea error is assigned. The question is, is this provision of the policy enforceable? It is very clear, from the opinion of Justice Brown in the case referred to above, that our supreme court approve the decision in Cameron v. Fay, 55 Tex. 58, upon the ground that the avails of an insurance policy on the homestead take the place of the house destroyed, and have therefore the same constitutional protection as exempt property that the house itself previously had, though that decision also held that a lien authorized by the very same constitution against the house could not be enforced against the proceeds of the policy, because they did not take the place of the house. We endeavored to sustain that decision upon a ground that would not involve such a palpable contradiction. As the same constitution which provided for the exemption of the house and lot from execution also provided for the creation of the mechanic's lien thereon, we could not understand how any court could hold, either in the same case or in different cases, that it was the intention of that constitution that the proceeds of the insurance policy...