Bank v. Robertson , 3 Tex. Civ. App. 150 ( 1893 )

On the 24th of January, 1889, A.B. Robertson sued out a writ of garnishment against the First National Bank of Montague, Texas, upon a judgment rendered in his favor in the District Court of Mitchell County for the sum of $3226.66, against A.L. Matlock and others, on the 19th of December, 1888.

The garnishee was alleged to be a corporation, having its principal office in Montague County, and that it was believed to be indebted to A.L. Matlock, and that said Matlock was the owner of shares therein. The garnishee failing to answer to the succeeding term of the court, defendant in error applied for and obtained the issuance of a commission to Montague County to take its answers to the writ of garnishment. This commission recited the service of the writ of garnishment and the failure of the garnishee to answer, and proceeded as follows: "Now, therefore, you are hereby commanded forthwith to summon W.A. Morris, the cashier of said First National Bank of Montague, Texas, before you to answer upon oath," etc. This commission having come into the hands of W.A. Williams, clerk of the County Court of Montague County, he duly made return, that on the 20th day of November, 1889, W.A. Morris, the witness before named, appeared before him and made answer as set forth therein. These answers are headed, "Answers of W.A. Morris," and among other things say, "(1) that on the said 28th day of January, 1889, or when the said writ of garnishment was served on him as cashier of the First National Bank of Montague, Texas, the said bank owed said A.L. Matlock nothing; on the other hand, said A.L. Matlock owed the bank over $2000, with accrued interest, which amount he still owes said bank; * * * (3) the said A.L. Matlock, at the date said writ of garnishment was served on him, owned sixty shares in the First National Bank of Montague, Texas, amounting to the sum of $6000, but the said bank stock aforesaid was at the time said writ of garnishment was served on him hypothecated to J.V. Farwell Co., to secure the payment to them of a note of $6000, and that said bank stock is still hypothecated to said J.V. Farwell Co. to secure them the payment of said $6000; (4) that said A.L. Matlock has no interest in said bank, nor had at the time said writ of garnishment was served upon him, except the bank stock above mentioned. [Signed] W.A. Morris, Cashier."

To this answer, on the 4th day of December, 1889, exceptions were filed, ostensibly in the interest of defendant in error, upon the ground that the garnishee had failed and refused to answer what it was indebted to the defendant, A.L. Matlock, at the time of the taking of its deposition; also had failed to answer what number of shares said defendant Matlock had in said bank at the time of said answer. These exceptions do not seem to have been signed either by defendant in error or his counsel. On the same day, however, the court rendered judgment sustaining the same, and gave judgment in favor of defendant in error against said bank as garnishee for the sum of $3764.07, to reverse which this writ of error is prosecuted.

The exceptions to the answer of the garnishee not being signed by defendant in error or his counsel, it is doubtful whether they should have been considered by the court below for any purpose. Hemming v. Zimmerschitte, 4 Tex. 159; Boren v. Billington,82 Tex. 137. This objection, however, does not seem to have been raised in the court below; and treating it as having been waived, we are of opinion that the court erred in holding the exceptions well taken. It is true the answer of the garnishee does not, in those exact words, state that the bank was not in-indebted to Matlock, nor that he did not own shares of stock therein at the time the answers were taken to the interrogatories; but we believe that no other inference can be fairly drawn from the answers as made, and that they did substantially negative such indebtedness and ownership. Drake on Attach., sec. 659.

The answer states that at the time of the service of the writ of garnishment the bank owed Matlock nothing, but on the contrary he owed it $2000, which he still owes; also, that he had no interest in the bank other than the sixty shares of stock hypothecated to Farwell Co. No attempt was made to subject these shares to sale as required by the statute, but a personal judgment was rendered against the bank for the full amount of the judgment in favor of defendant in error against Matlock, as upon a total failure to answer.

We are clearly of opinion that this was error. If the answer of the bank was defective at all, there is nothing in the record to indicate such willful failure or refusal upon its part to make full answer as seems to be required by our statute to subject it to a judgment by default. Jemison v. Scarborough, 56 Tex. 358. The failure to make more specific answers seems to us to be attributable more to the neglect of the officer in reducing them to writing than to any desire on the part of the garnishee to evade answering.

Again: it will be noted that the commission under which the answer to the garnishee was taken required the officer to whom it was directed to take the answers of W.A. Morris, the cashier of the bank, not the answers of the bank itself. It has several times been decided in this State, that such service will not sustain a judgment by default against a corporation, and it may well be doubted whether the answers of Morris under this commission would confer jurisdiction upon the court to render a judgment by default (for a judgment for failure to make full answer would seem to be a judgment by default) against the bank; but as this question is not raised in the assignments of error, and as there are expressions in some of the decisions which might seem to give weight to such an answer as between the parties to this proceeding, we will not undertake its decision. Ins. Co. v. Seeligson, 59 Tex. 3; Railway v. Rollins, 81 Tex. 579 [81 Tex. 579]; Bowers v. Ins. Co., 65 Tex. 51; Ins. Co. v. Friedman Bros., 74 Tex. 56.

We are of opinion that the judgment of the court below should be reversed and the cause remanded, and it is so ordered.

Reversed and remanded.

A motion for rehearing was refused.