Wilson v. Young County Hardware & Furniture Co.

• Decision Date: 17 May 1924
• Docket Number: (No. 10677.)
• Parties: WILSON v. YOUNG COUNTY HARDWARE & FURNITURE CO.
• Court: Texas Court of Appeals

262 S.W. 873

WILSON v. YOUNG COUNTY HARDWARE & FURNITURE CO.

(No. 10677.)

Court of Civil Appeals of Texas. Fort Worth.

May 17, 1924.

Rehearing Denied June 14, 1924.

Appeal from Montague County Court; H. S. Callaway, Judge.

Action in justice court by Young County Hardware & Furniture Company against J V. Gilliland and J. D. Wilson, garnishee. From judgment rendered in the county court dismissing an application for certiorari, garnishee appeals. Affirmed.

Chancellor & Bryan, of Bowie, for appellant.

Homer B. Latham, of Bowie, for appellee.

BUCK, J.

J. D. Wilson, a citizen of Montague county, filed an application in the county court of said county for a writ of certiorari directed to G. W. Chancellor, justice of the peace of Montague county, requiring said justice of the peace to send to the county court certified copies of entries upon his docket, together with the original papers on file in a case filed in the justice court of precinct No. 4, Montague county, by the Young County Hardware & Furniture Company against J. V. Gilliland for debt, and against the plaintiff below as garnishee. Plaintiff alleged that on September 19, 1922, the Young County Hardware & Furniture Company, hereinafter called furniture company, secured a judgment in said justice court of Montague county against the petitioner. Plaintiff alleged that said judgment was null and void for the reason that on May 26, 1921, there was served on said petitioner a writ of garnishment issued out of the justice court, precinct No. 1, Young county, the same having been issued about May 24th, being in connection with the case of the furniture company against said Gilliland. The plaintiff alleged that no commission was issued out of said justice court requiring the petitioner to answer said writ, and that, under the law as it existed at the time said writ of garnishment was issued out of said justice court of Young county and at the time the same was served on the petitioner, he was not required to answer except on the issuance of a commission from said justice court requiring him to do so, as the petitioner at the time of the filing of this suit was a nonresident of Young county, and resided in precinct No. 4, Montague county. He further alleged that the amendment and the change in the law requiring a nonresident to answer a garnishment writ the same as a resident defendant was passed at the regular session of the Thirty-Seventh Legislature and that said Legislature convened on January 11, and adjourned on March 12, 1921. Petitioner further alleged that if the main suit had been transferred by the justice court of Young county to the justice court of Montague county, by reason of a plea of privilege filed by defendant in that suit, J. V. Gilliland, that the petitioner had never applied for a transfer and so far as he was concerned the cause against him, if any, was still in the justice court of Young county. Upon the petition being presented to the judge of the county court of Montague county, and a bond in the sum of $200 being filed, the writ was ordered to issue as prayed for, and the transcript of the judgment from the justice court, together with the affidavit and bond in garnishment, was sent up by the justice of precinct No. 4 of Montague county and was filed in the county court November 4, 1922. The furniture company filed a motion to quash the certiorari writ and that the same be dismissed. From an order of the county court dismissing petitioner's application for certiorari, the petitioner has appealed.

The statement of facts has only to do with the question of whether the act changing the law with reference to garnishment proceedings against a nonresident took effect immediately from and after its passage, or 90 days after the adjournment of the Legislature. The statement of facts shows that the bill originally passed the House by 99 yeas and 8 nays, present not voting 1, absent 27. That it was then sent to the Senate, where, after some amendments were adopted, it passed that body by a vote of 24 yeas, 5 absent and 1 excused, Senator Bledsoe occupying the chair. It was then sent back to the House, and that body concurred in the amendments proposed by the Senate, no record vote being taken, and the bill was presented to the Governor for his approval on March 12th, but not signed by him nor returned to the House in which it originated with his objections thereto within the time prescribed by law, and it became a law without his signature. 25 R. C. L. § 129, p. 882, says:

"But, according to what seems to be the preponderance of authority, the final passage of a bill is the vote by which each house adopts the bill after it has passed its third reading. Where a bill has been passed in one house and amended and passed in the other, the vote on the adoption of the amendment by the house in which the bill originated need not, under such a constitutional provision, be taken by ayes and noes and entered on the journal."

In State v. Crowe, 130 Ark. 272, 197 S. W. 4, L. R. A. 1918A, 567, Ann. Cas. 1918D, 460, the Supreme Court of that state held that a bill originating in the Senate and duly passed and being duly transmitted to the House and being there...