Summary
In Smith v. Wallis, 18 Tex. Civ. App. 402, 45 S.W. 820, it was held that an affidavit for garnishment setting out the name of a mercantile firm without giving the names of the persons who composed it, was insufficient.
Summary of this case from Barker v. Security State BankOpinion
Delivered March 24, 1898.
1. Garnishment — Names of Firm in Application.
An application for a writ of garnishment which sets out the name of a mercantile firm without giving the names of the persons of which it is composed, is not a compliance with article 219, Revised Statutes, requiring the name of the garnishee to be stated.
2. Same — Amendment.
A writ of garnishment will be quashed where the application fails to set out the name and residence of the garnishee, and such failure can not be cured by amendment.
APPEAL from Brazoria. Tried below before Hon. T.S. REESE.
T.J. R.C. Duff, for appellants.
Minor Hawkins, for appellees.
The appeal in this case was from a judgment of the court below quashing a writ of garnishment sued out by the appellants, Smith Bros., against Wallis, Landes Co. upon a judgment in favor of the appellants against Carey Hawkins and Creacy Hawkins. The application for the writ alleged "that plaintiffs and deponent have reason to believe, and do believe, that Wallis, Landes Co., a mercantile firm, residing and doing business in the city of Galveston, State of Texas, are indebted to the defendants, and that they have in their hands effects belonging to the defendants; wherefore plaintiffs pray for writs of garnishment to issue against the said Wallis, Landes Co., and for further proceedings thereon, as in like cases provided by law."
A writ of garnishment was issued which recited that the plaintiffs "have applied for writs of garnishment against Wallis, Landes Co., a mercantile firm, residents of the city of Galveston, in the county of Galveston, in the State of Texas;" and commanded that Wallis, Landes and Co. be summoned to appear, etc. Copies of the writ of garnishment were served on J.E. Wallis and H.A. Landes. Joseph E. Wallis, Henry A. Landes, and Charles L. Wallis answered the writ as partners in trade under the firm name of Wallis, Landes Co., and pleaded that neither of the writs showed either any application by the plaintiff for a writ of garnishment against the individuals composing the firm of Wallis, Landes Co., or any command to summon the individuals composing said firm, and further alleged that they were advised and informed that the garnishment suit was not properly brought against the firm of Wallis, Landes Co., and of this they prayed judgment of the court. They then answered as to the indebtedness, etc., and concluded with a prayer that the firm of Wallis, Landes Co. and the individual members thereof might be discharged with their costs, etc., and for such relief as might fully protect them in the premises. With leave of the court the plaintiffs filed a trial amendment to the original affidavit for garnishment, in which they alleged that the firm of Wallis, Landes Co. was a mercantile firm composed of Joseph E. Wallis, Henry A. Landes, and Charles L. Wallis, etc. The court below sustained the motion to quash and discharged the garnishees. The statute requires the application for garnishment to set out the name and residence of the garnishee. Sayles' Ann. Stats., art. 219. This the application failed to do, and was properly quashed. Setting out the name of a mercantile firm without giving the names of the persons who compose the firm, is not a compliance with the statute that requires the name of the garnishee to be stated. The affidavit could not be amended. Marx v. Abramson, 53 Tex. 264. Affirmed.
Affirmed.