On the 5th day of May, 1906, appellant recovered in the Justice Court, precinct No. 1, McLennan County, a judgment against S. H. Horne for the sum of $100.47, together with interest and costs of suit, and on the 28th of May next thereafter caused a writ of garnishment to be issued in said cause against the Texas Christian University, appellee herein, and on the 25th of June, judgment was rendered by default against appellee in said garnishment proceeding for the sum of $104.06, with interest and costs; and on the 28th of August next thereafter execution was sued out upon said judgment against appellee and levied upon certain lots in the city of Waco, upon which were situated the college buildings and dormitories of said University, and caused the same to be advertised for sale on the first Tuesday in October, 1906.
On the 22d of September the Texas Christian University, appellee herein and plaintiff below, presented a petition for certiorari to the Hon. J. W. Baker, county judge of McLennan County, praying for a writ of certiorari to remove to the County Court for review said judgment theretofore rendered against it in said Justice's Court, upon the ground that said Justice's Court had no jurisdiction to render the same for want of legal service upon it; and further that injustice was done to appellee by the rendition of said judgment, and the same was not caused by its own inexcusable neglect.
The said judge upon consideration of said petition granted the same and ordered the writ of certiorari to issue upon appellee's giving a bond in a sum fixed by him, conditioned as required by law, which said bond having been given and approved, the writ of certiorari was duly issued by the clerk in compliance with the order of said judge to said justice of the peace, who thereafter prepared and sent a transcript of the orders upon his docket, together with the original papers in said cause to the County Court, where the same were duly filed by the clerk. Whereupon, at the next term thereafter of the County Court, appellant presented her motion to dismiss the certiorari proceedings for the several reasons set out in said motion, first, because she alleged that appellee's petition for certiorari did not negative the idea that said writ of garnishment may have been served upon appellee by leaving a copy thereof at
the principal office during office hours; second, because she alleged that the writ of garnishment was not directed as ordered by the judge to T. G. Dilworth, justice of the peace of precinct No. 1, of McLennan County, but to the sheriff of said county, and because the writ failed to command said justice to make and certify the orders in said cause, but merely commanded the sheriff to cause said justice to do so; and, third, because no sufficient bond for the writ of certiorari had been filed, as required by law. Which motion to dismiss was overruled by the court and judgment rendered on appellee's answer to said writ of garnishment dismissing it and awarding judgment in its favor for $25 as a garnishee fee against appellant, from which judgment appellant prosecutes her appeal.
Appellant by her first, second, third and fourth assignments of error complains of the action of the trial court in refusing to sustain her motion to dismiss the certiorari proceedings, because the petition therefor failed to negative the idea that service may have been had upon said corporation by leaving a copy of the writ of garnishment at the principal office of said company during office hours.
There are three modes known to our law by which citation may be served upon an incorporated company: First, the citation may be served upon the president, secretary or treasurer of such company; second, upon the local agent representing such company in the county in which the suit is brought; or, third, by leaving a copy of the same at the principal office of the company during office hours. (Art. 1222, Rev. Stats., as amended by the Acts of 1903, 28th Leg., p. 66.) It appears from the record in this case that the first mode of service, as above prescribed, was the one adopted by appellant in attempting to serve appellee with the writ of garnishment, because the writ itself commanded the officer to summon the said Texas Christian University, by serving its said president, E. V. Zollars, with a copy thereof. The return upon said writ shows that it was executed on the same day by delivering to said Zollars, president of said. University, a copy thereof. The judgment in the garnishment proceedings in the Justice's Court, among other things, recited that service of said writ of garnishment had been made upon Zollars, the President of said Texas Christian University; and it is alleged in the petition for certiorari that the said service is the only service that was ever had upon said corporation in any way or by any person in said garnishment case. The petition for certiorari, together with the several exhibits thereto, showed clearly that the only service of said writ of garnishment was made upon E. V. Zollars as president of said Texas Christian University, and the entire record of the garnishment proceedings discloses that no effort was made to serve said corporation by leaving a copy at its principal office during office hours.
Hence, it follows that if Zollars was not the president of said corporation at the time said writ of garnishment was served upon him, and had no authority to represent said University, as alleged in the sworn petition of appellee for writ of certiorari, and which allegations were not contested by appellant, then no such service
was had upon it in said garnishment proceedings as would authorize judgment against appellee, and the same was void, and was therefore properly removable by certiorari proceedings to the County Court for review, the other requisites of a petition for certiorari having been complied with.
It is shown from the allegations of appellee's petition for certiorari that Zollars was not at the time said writ was served upon it, or at any other time, President of said Texas Christian University, but that T. E. Shirley was at said time its president and secretary, and these facts were not disputed by appellant. Besides this, the answer of appellee set up other facts showing that injustice was done it by the judgment in the garnishment proceedings, and that such injustice was not caused by its own inexcusable neglect; wherefore we think judgment was properly rendered in its favor.
But appellant contends by her fifth, sixth and seventh assignments of error that the court erred in overruling and failing to sustain her motion to dismiss the certiorari proceedings herein, because, as set forth in paragraph 2 of said motion, the order for certiorari commanded the clerk to issue the writ of certiorari directed to T. G. Dilworth, justice of the peace, whereas the pretended writ issued under said order was and is directed to the sheriff of McLennan County, and not to said justice of the peace. Each of the above assignments is addressed to the same supposed technical defect in the writ of certiorari; and it is contended by appellant that if said writ was improperly directed to the sheriff, instead of the justice of the peace, the whole suit should be dismissed.
We do not concur with appellant in this contention. Article 353 of the Revised Statutes provides that at the first term of the court to which the certiorari is returnable the adverse party may move to dismiss the certiorari for want of sufficient cause appearing in the affidavit, or for want of sufficient bond. This seems to imply that a motion should not prevail predicated upon any other defect in the proceedings than those named in the statute, to wit: want of sufficient cause appearing in the affidavit, or for want of sufficient bond.
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On the 5th day of May, 1906, appellant recovered in the Justice Court, precinct No. 1, McLennan County, a judgment against S. H. Horne for the sum of $100.47, together with interest and costs of suit, and on the 28th of May next thereafter caused a writ of garnishment to be issued in said cause against the Texas Christian University, appellee herein, and on the 25th of June, judgment was rendered by default against appellee in said garnishment proceeding for the sum of $104.06, with interest and costs; and on the 28th of August next thereafter execution was sued out upon said judgment against appellee and levied upon certain lots in the city of Waco, upon which were situated the college buildings and dormitories of said University, and caused the same to be advertised for sale on the first Tuesday in October, 1906.
On the 22d of September the Texas Christian University, appellee herein and plaintiff below, presented a petition for certiorari to the Hon. J. W. Baker, county judge of McLennan County, praying for a writ of certiorari to remove to the County Court for review said judgment theretofore rendered against it in said Justice's Court, upon the ground that said Justice's Court had no jurisdiction to render the same for want of legal service upon it; and further that injustice was done to appellee by the rendition of said judgment, and the same was not caused by its own inexcusable neglect.
The said judge upon consideration of said petition granted the same and ordered the writ of certiorari to issue upon appellee's giving a bond in a sum fixed by him, conditioned as required by law, which said bond having been given and approved, the writ of certiorari was duly issued by the clerk in compliance with the order of said judge to said justice of the peace, who thereafter prepared and sent a transcript of the orders upon his docket, together with the original papers in said cause to the County Court, where the same were duly filed by the clerk. Whereupon, at the next term thereafter of the County Court, appellant presented her motion to dismiss the certiorari proceedings for the several reasons set out in said motion, first, because she alleged that appellee's petition for certiorari did not negative the idea that said writ of garnishment may have been served upon appellee by leaving a copy thereof at
the principal office during office hours; second, because she alleged that the writ of garnishment was not directed as ordered by the judge to T. G. Dilworth, justice of the peace of precinct No. 1, of McLennan County, but to the sheriff of said county, and because the writ failed to command said justice to make and certify the orders in said cause, but merely commanded the sheriff to cause said justice to do so; and, third, because no sufficient bond for the writ of certiorari had been filed, as required by law. Which motion to dismiss was overruled by the court and judgment rendered on appellee's answer to said writ of garnishment dismissing it and awarding judgment in its favor for $25 as a garnishee fee against appellant, from which judgment appellant prosecutes her appeal.
Appellant by her first, second, third and fourth assignments of error complains of the action of the trial court in refusing to sustain her motion to dismiss the certiorari proceedings, because the petition therefor failed to negative the idea that service may have been had upon said corporation by leaving a copy of the writ of garnishment at the principal office of said company during office hours.
There are three modes known to our law by which citation may be served upon an incorporated company: First, the citation may be served upon the president, secretary or treasurer of such company; second, upon the local agent representing such company in the county in which the suit is brought; or, third, by leaving a copy of the same at the principal office of the company during office hours. (Art. 1222, Rev. Stats., as amended by the Acts of 1903, 28th Leg., p. 66.) It appears from the record in this case that the first mode of service, as above prescribed, was the one adopted by appellant in attempting to serve appellee with the writ of garnishment, because the writ itself commanded the officer to summon the said Texas Christian University, by serving its said president, E. V. Zollars, with a copy thereof. The return upon said writ shows that it was executed on the same day by delivering to said Zollars, president of said. University, a copy thereof. The judgment in the garnishment proceedings in the Justice's Court, among other things, recited that service of said writ of garnishment had been made upon Zollars, the President of said Texas Christian University; and it is alleged in the petition for certiorari that the said service is the only service that was ever had upon said corporation in any way or by any person in said garnishment case. The petition for certiorari, together with the several exhibits thereto, showed clearly that the only service of said writ of garnishment was made upon E. V. Zollars as president of said Texas Christian University, and the entire record of the garnishment proceedings discloses that no effort was made to serve said corporation by leaving a copy at its principal office during office hours.
Hence, it follows that if Zollars was not the president of said corporation at the time said writ of garnishment was served upon him, and had no authority to represent said University, as alleged in the sworn petition of appellee for writ of certiorari, and which allegations were not contested by appellant, then no such service
was had upon it in said garnishment proceedings as would authorize judgment against appellee, and the same was void, and was therefore properly removable by certiorari proceedings to the County Court for review, the other requisites of a petition for certiorari having been complied with.
It is shown from the allegations of appellee's petition for certiorari that Zollars was not at the time said writ was served upon it, or at any other time, President of said Texas Christian University, but that T. E. Shirley was at said time its president and secretary, and these facts were not disputed by appellant. Besides this, the answer of appellee set up other facts showing that injustice was done it by the judgment in the garnishment proceedings, and that such injustice was not caused by its own inexcusable neglect; wherefore we think judgment was properly rendered in its favor.
But appellant contends by her fifth, sixth and seventh assignments of error that the court erred in overruling and failing to sustain her motion to dismiss the certiorari proceedings herein, because, as set forth in paragraph 2 of said motion, the order for certiorari commanded the clerk to issue the writ of certiorari directed to T. G. Dilworth, justice of the peace, whereas the pretended writ issued under said order was and is directed to the sheriff of McLennan County, and not to said justice of the peace. Each of the above assignments is addressed to the same supposed technical defect in the writ of certiorari; and it is contended by appellant that if said writ was improperly directed to the sheriff, instead of the justice of the peace, the whole suit should be dismissed.
We do not concur with appellant in this contention. Article 353 of the Revised Statutes provides that at the first term of the court to which the certiorari is returnable the adverse party may move to dismiss the certiorari for want of sufficient cause appearing in the affidavit, or for want of sufficient bond. This seems to imply that a motion should not prevail predicated upon any other defect in the proceedings than those named in the statute, to wit: want of sufficient cause appearing in the affidavit, or for want of sufficient bond. We are inclined to the opinion that these are the only causes for which a party may move to dismiss the certiorari proceedings. This statute has heretofore received the same construction by the courts. (Peck v. Reed, 3 Texas App. C. C., sec. 265; 2 W. W., sec. 108.) But, even if we are not correct in this position, we do not believe that the supposed technical defect complained of by appellant should prevail, because in this case the justice had complied with the requirements of the law in preparing a transcript of the record in the garnishment proceedings, and filing the same together with the original papers, in the County Court, thereby in effect doing all that he could have done in the event the writ of certiorari had complied in every respect with the law. Besides this, it has been held in this State that even where the clerk had issued a subpoena duces tecum to the justice of the peace in certiorari proceedings, instead of the writ of certiorari, it would be no ground for dismissing the proceedings where the justice had complied with the law by filing a transcript and original papers in
the County Court. (Beauchamp v. Schiff, 3 Texas App. C. C., sec. 170; Nelms v. Draub, 22 S.W. Rep., 995.)
Appellant by her eighth assignment of error questions the correctness of the judgment of the trial court in overruling her motion to dismiss the certiorari proceedings, because it was alleged in paragraph 3 of appellant's motion to dismiss that there was an insufficient bond given, in this, that the statute requires that such bond shall be conditioned that the party applying for the certiorari will perform the judgment of the County or District Court, if the same shall be against him, whereas the bond in this case omits from the above clause the word "district," and is therefore defective and does not comply with the law. It will be observed by reference to our statute upon the subject of certiorari to justice courts that a cause may be removed to the County Court by writ of certiorari; or, if the jurisdiction has been transferred from the County to the District Court, then the District Court would have jurisdiction to issue the writ in the manner thereinafter directed. Art. 342 provides that the writ may be issued by the order of the County Court or judge thereof, or the District Court or the judge thereof, if jurisdiction of the County Court has been transferred to the District Court, as provided in the preceding article. It is true that art. 347 does provide that the writ of certiorari shall not be issued unless the party applying therefor shall first cause to be filed a bond in such sum as the judge shall direct, to be approved by the clerk and payable to the adverse party, conditioned that the party applying therefor will perform the judgment of the County or District Court, if the same shall be against him. But we think that it is obvious that the expression "County or District Court" in said statute was merely intended to mean that the bond should be conditioned that the party appealing should perform the judgment of the particular court applied to, to issue the proceedings, because in those counties in which the jurisdiction of the County Court had been transferred to the District Court, the party applying for the writ of certiorari would necessarily be compelled to resort to the judge of the District Court in order to obtain the writ; and in cases where the County Court exercised jurisdiction the party applying for a writ of certiorari could not in any event seek redress in the District Court, but must necessarily apply for the writ to the judge of the County Court. And in this case we think it would have been error for the bond to have been conditioned as contended for by appellant, and that appellee was correct in conditioning the same to perform the judgment of the County Court.
Appellant by her ninth assignment of error complains of the action of the trial court in allowing a fee of $25 in favor of the garnishee, to be taxed as a part of the costs of the suit as against appellant, and contends that as the allowance was not authorized by the certiorari statute that the garnishee was not entitled to such fee. Appellant insists that chapter 2, Revised Statutes, upon the subject of certiorari to Justice Court, contains no provision authorizing taxation of such fee, and that the proceedings in the County
Court, being based upon such statute, it was not proper for the court to tax the fee under art. 253, Revised Statutes.
When a case has been properly removed by certiorari from the justice to the County Court, it is proper for said court to hear and determine the case upon its merits. The certiorari statute itself, art. 359, provides that the case shall be tried de novo in the County or District Court, and judgment shall be rendered as in cases of an appeal from the Justice Court. Article 358 provides that either party may plead any new matter in the County or District Court which was not presented in the court below, etc.
From a consideration of said articles, as well as the obvious policy of the law in permitting a review of the judgment of the Justice's Court, it is evident that it was contemplated that the trial in the County Court should be de novo, and entitle the parties litigant to a determination of any matter that may have been in issue in the Justice's Court, or that could be made such in the County Court by pleading of the parties.
In this case appellee had answered fully upon the facts, which answer had not been contested by appellant. It was therefore entitled to a judgment in its favor discharging it; and was further entitled to a reasonable garnishee's fee to be taxed against appellant as a part of the costs. It is within the discretion of the court to determine what amount of fee in such cases is reasonable, and in this case we do not think that this discretion was abused. (Art. 253, Rev. Civ. Stat.)
After a full consideration of all points raised by appellant, aided by able briefs of counsel for both parties, we are constrained to believe that the judgment of the trial court was in all things correct, and it is therefore affirmed.
Affirmed.
OPINION ON MOTION FOR REHEARING.