Tompkins Machine & Implement Co. v. Schmidt

16 S.W. 174, 4 Willson 194

• Court: Court of Appeals of Texas
• Decided: June 10, 1890
• Docket: No. 6302
• Status: Published

Opinion

Opinion by

Willson, J.

June 10, 1890.

§ 134. Garnishment; service of writ of on incorporated company; sheriff’s return of service held insufficient to authorize judgment by default. This writ of error is prosecuted from a judgment by default recovered by defendant in ei’ror against plaintiff in error as a garnishee. Plaintiff in error is an incorporated company under the laws of this state. The return of the sheriff of service of the writ of garnishment is as follows: “ Game to hand September 3, 1888, and executed same day received, at 10:30 o’clock A. M., by delivering to Geo. E. Bennett, manager of the Tompkins Mach. & Imp. Co., a true copy of this writ.”. This return of service did not authorize the judgment by default. It does not show that service of the writ was made ufpon plaintiff in error ill any of the modes prescribed by the statute. It cannot be assumed or presumed that the “manager” of said company was either the president, secretary, treasurer or local agent of said company. [Sayles’ Civil St., art. 1223.] In the case of a foreign corporation, service of process may'be had upon the “general manager” of such corporation, but plaintiff in error is not a foreign, but a domestic, corporation. [Id., art. 1223a.]

Reversed and remanded.