Burns v. Martin

Court of Appeals of Texas

Burns v. Martin

254 S.W. 226, 1923 Tex. App. LEXIS 478

CourtCourt of Appeals of Texas

DecidedJune 14, 1923

DocketNo. 2784.

StatusPublished

Cited by2 cases

This text of 254 S.W. 226 (Burns v. Martin) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Burns v. Martin, 254 S.W. 226, 1923 Tex. App. LEXIS 478 (Tex. Ct. App. 1923).

Pincite

Opinion

LEVY, J.

(after stating the facts as above), [1] An application for a writ of garnishment stating simply the “name and residence” of the garnishee is a sufficient compliance with the terms of the statute to reach the money or credit or property of the defendant. Article 273, R. S. The article does not require the application to contain the words “ihcorporated” or “duly incorporated.” That part of article 273 which requires the application for a writ of garnishment to state that “the garnishee is an incorporated or joint-stock company” is applicable and need only be alleged where the creditor attempts to reach the shares, or an interest therein, of a stockholder in a corporation or joint-stock company. It is plainly so provided by the further provisions of the statute prescribing the requisites and *227 form of the writ of garnishment to be served upon the garnishee. By article 274, R. S., the clerk or the justice, as the case may be, is required to—

“issue a writ of garnishment, directed to the sheriff or any constable of the county where the garnishee is alleged to reside or be, commanding him forthwith to summon the garnishee to appear before the court out of which the same is issued, * * * to answer upon oath what, if anything, he is indebted to the defendant, and was when such writ was served, and what effects, if any, of the defendant he has in his possession, and had when such writ was served, and .what other persons, if any, within his knowledge, are indebted to the defendant or have effects belonging to him in their possession.”

By article 275, R. S., the requisites, when the writ is against an incorporated- or joint-stock company to subject shares of stock to garnishment, are:

“Where it appears from the plaintiff’s affidavit that the garnishee is an incorporated or joint-stock company, in which the defendant is the owner of shares, or is interested therein, the writ of garnishment shall further require the garnishee to answer upon oath what number of shares, if any, the defendant owns in such company, or owned when such writ was served, and what interest, if any, he' has in such comp'any, or had when such writ was served.”

The form of the writ as prescribed by article 276 contains the following direction:

“ (And if the' garnishee be an incorporated or joint-stock company, in which the defendant is alleged to be the owner-of shares or interested therein, then the writ shall proceed: And further to answer what number of shares, if any, the said C. D. [defendant] owns in such company, and owned when such writ was served.)”

These express! provisions of the statute-could have no other purpose than to authorize and permit the creditor, as he might elect to do in the given case, to proceed to obtain garnishment against the money or credits or property, and the shares of stock of the debtor, or against his money or credits or property, or against his shares of stock. It is concluded, therefore, that the garnishment proceedings were valid to the extent of the allegations, and that they should not have been quashed and dismissed. In this ruling we are not unmindful of the cases of Underwood v. Bank (Tex. Civ. App.) 62 S. W. 943, and Barker v. Bank (Tex. Civ. App.) 248 S. W. 479.

[2, 3] The application states that “$357.20” remains unpaid on the judgment. This is not strictly an averment of the precise amount in which “the defendant” in this case is indebted to the plaintiff in the writ. The proceedings, however, are not invalid on that account. Both the plaintiff and the / ■defendant in the writ are sureties, and liable as such only. A surety who has paid a judgment, as here, may enforce a contribution against a cosurety of his proportionate part. Article 6334, R. S.; Eubanks v. Sites (Tex. Civ. App.) 146 S. W. 952. The law would sufficiently fix the amount the defendant surety should pay. Article 6333, R. S.

The judgment is reversed, and the cause remanded.

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LEVY, J.

(after stating the facts as above), [1] An application for a writ of garnishment stating simply the “name and residence” of the garnishee is a sufficient compliance with the terms of the statute to reach the money or credit or property of the defendant. Article 273, R. S. The article does not require the application to contain the words “ihcorporated” or “duly incorporated.” That part of article 273 which requires the application for a writ of garnishment to state that “the garnishee is an incorporated or joint-stock company” is applicable and need only be alleged where the creditor attempts to reach the shares, or an interest therein, of a stockholder in a corporation or joint-stock company. It is plainly so provided by the further provisions of the statute prescribing the requisites and *227 form of the writ of garnishment to be served upon the garnishee. By article 274, R. S., the clerk or the justice, as the case may be, is required to—

“issue a writ of garnishment, directed to the sheriff or any constable of the county where the garnishee is alleged to reside or be, commanding him forthwith to summon the garnishee to appear before the court out of which the same is issued, * * * to answer upon oath what, if anything, he is indebted to the defendant, and was when such writ was served, and what effects, if any, of the defendant he has in his possession, and had when such writ was served, and .what other persons, if any, within his knowledge, are indebted to the defendant or have effects belonging to him in their possession.”

By article 275, R. S., the requisites, when the writ is against an incorporated- or joint-stock company to subject shares of stock to garnishment, are:

“Where it appears from the plaintiff’s affidavit that the garnishee is an incorporated or joint-stock company, in which the defendant is the owner of shares, or is interested therein, the writ of garnishment shall further require the garnishee to answer upon oath what number of shares, if any, the defendant owns in such company, or owned when such writ was served, and what interest, if any, he' has in such comp'any, or had when such writ was served.”

The form of the writ as prescribed by article 276 contains the following direction:

“ (And if the' garnishee be an incorporated or joint-stock company, in which the defendant is alleged to be the owner-of shares or interested therein, then the writ shall proceed: And further to answer what number of shares, if any, the said C. D. [defendant] owns in such company, and owned when such writ was served.)”

These express! provisions of the statute-could have no other purpose than to authorize and permit the creditor, as he might elect to do in the given case, to proceed to obtain garnishment against the money or credits or property, and the shares of stock of the debtor, or against his money or credits or property, or against his shares of stock. It is concluded, therefore, that the garnishment proceedings were valid to the extent of the allegations, and that they should not have been quashed and dismissed. In this ruling we are not unmindful of the cases of Underwood v. Bank (Tex. Civ. App.) 62 S. W. 943, and Barker v. Bank (Tex. Civ. App.) 248 S. W. 479.

[2, 3] The application states that “$357.20” remains unpaid on the judgment. This is not strictly an averment of the precise amount in which “the defendant” in this case is indebted to the plaintiff in the writ. The proceedings, however, are not invalid on that account. Both the plaintiff and the / ■defendant in the writ are sureties, and liable as such only. A surety who has paid a judgment, as here, may enforce a contribution against a cosurety of his proportionate part. Article 6334, R. S.; Eubanks v. Sites (Tex. Civ. App.) 146 S. W. 952. The law would sufficiently fix the amount the defendant surety should pay. Article 6333, R. S.

The judgment is reversed, and the cause remanded.

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254 S.W. 226, 1923 Tex. App. LEXIS 478, Counsel Stack Legal Research, https://law.counselstack.com/opinion/burns-v-martin-texapp-1923.

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