(273 S.W.) "It cannot be doubted that the transportation of mail stands upon the same footing as the transportation of freight, baggage or other commodities: It is common knowledge that railroad companies carry mail under contracts entered into with the federal government authorized by statute and that such transportation is paid for in accordance with the terms of such contracts. The fact that the carriage is for the federal government does not stand different than if the service is rendered to an individual; it is a part of the regular business of railroads from which they derive a substantial revenue." In Zenz et al. v. Industrial Accident Commission et al., 176 Cal. 304, 168 P. 364, L. R. A. 1918D, 423, an employee, while delivering pouches of mail from the depot at his station to an interstate train, was run down by another train, and the court held that he was engaged in interstate commerce, and dis cussed that issue in these words: "We think there can be no serious question, in view of the decisions, that the transportation of mail between different states and territories is interstate commerce. "We are of the opinion that the fact that the transportation of mail is for the federal gov ernment can make no difference in this respect. When mail is transported from one state to another, such transportation is interstate commerce, although the carrier be acting under contract with the government and as one of its agencies." In Cox v. St. Louis & S. F. R. R. Co., 111 Tex. 8, 222 S. W. 964, Justice Greenwood, for the Supreme Court, made this observation: "Cox suffered his injuries while he was engaged in unloading freight shipped from Texas to Oklahoma. He was therefore injured while employed by the carrier in interstate commerce, and liability for his injuries is governed by the federal Employers' Liability Act." Opening certificate: "Answers and depositions of the witness, Tom B. Morris, taken before me, the undersigned authority, under and by virtue of the attached waiver in answer to the attached interrogatories and cross interrogatories." Concluding certificate, following answer to direct interrogatories and immediately below signature of witness: "Subscribed and sworn to before me this the 17th day of April, 1923. [Signed] G. C. Barkman, Notary Public, Bowie County, Texas." Certificate following answer to cross-interrogatories and immediately below the signature of the witness: "Subscribed and sworn to before me this the 17th day of April, 1923. [Signed] G. C. Barkman, Notary Public, Bowie County, Texas." "The State of Texas, County of Bowie. I, G. C. Barkman, a notary public in and for Bowie county, Texas, do hereby certify that the above and foregoing answers of the witness, Tom B. Morris, were made before me, reduced to writing, read over to the witness, and were then signed and sworn to before me. Given under my hand and seal of office this the 17th day of April, 1923. [Signed] G. C. Barkman, Notary Public, Bowie County, Texas." We understand the law to be that, if the certificate of the notary is a substantial compliance with the requirement of the statute, that it is sufficient. We have read the cases cited by both parties on the question of the sufficiency of a notary's certificate to deposition, and find that the certificate in each case is different, and that in no case cited is the certificate exactly like the one under consideration. Therefore none of the cases are decisive of the question in this case, and we are left to apply the law to the facts of this particular case to determine whether or not there is a substantial compliance with the statute. The question as stated is: Does the certificate show that the witness subscribed and swore to the answers before the officer that took his deposition? It will be seen that the witness signed immediately below the answers to both the direct and cross-interrogatories, and that following the signature in each instance we find the certificate of the notary: "Subscribed and sworn to before me, this the 17th day of April, A. D. 1923," followed by the signature of the notary showing his official capacity. The final certificate is that the answers of the witness were made before the notary, reduced to writing, read over to the witness, and were [3] Defendant railway company, in the then signed and sworn to before the notary. trial court, objected to the introduction of The whole instrument shows clearly that it the depositions of several witnesses on the was signed by the witness who made the alleged ground that it did not appear from answers, for his name appears at the close the official certificate of the officer taking of the answers to the direct interrogatories such depositions that the answers of the and at the close of the answers to the witnesses were subscribed and sworn to by cross-interrogatories, and the final certifithe witness before the officer taking the dep-cate also shows clearly that the answers osition. The certificate of the officer was were read over to the witness who gave as follows: the answers, and it seems to us that no [2] From these authorities we can reach no other conclusion than that the cause was properly brought under the federal law. other reasonable construction could be placed on the certificate than that the witness that the answers were read over to and who signed the instrument was the same party who swore to the answers before the notary. It clearly appears from the certificate that the answers were sworn to, and it can mean nothing else than that the affidavit was made by the witness who made the answers. We therefore conclude that the notary's certificate was a substantial compliance with the law. [4] The following question was asked one of the witnesses: "If you state that Morris Sheppard Baldwin returned to his work after the 4th day of December, 1920, state whether or not he was physically and mentally able to attend to his work as well as he had been prior to the 4th of December, 1920." The answer of the witness to the interrogatory was as follows: "I could not say about that, for I was. with him only three nights, and after that he went on a different shift from mine. From the conversation I have had with him and from his general demeanor, I say that he is not capable of doing that kind of work. He appears to be physically able to do that work." From this statement it would seen that the statements made by Baldwin to the doctor were made in connection with and as a result of the examination made by the doctor. At least, it does not clearly appear that such statements were not so made, and, if they were so made they were admissible under the rule stated in M. K. & T. Ry. Co. v. Johnson, 95 Tex. 409, 67 S. W. 768. We have examined the other questions raised by plaintiff in error, and are of opinion that they have been properly disposed of by the Court of Civil Appeals. We recommend that the judgments of the Court of Civil Appeals and the district court be affirmed. CURETON, C. J. The judgment recommended in the report of the Commission of Appeals is adopted, and will be entered as the judgment of the Supreme Court. NEW AMSTERDAM CASUALTY CO. v. Garnishment June 27, 1925.) Plaintiff in error objected to the second sentence of the answer on the ground that it was not responsive to the interrogatory, and complains because the court overruled his (Commission of Appeals of Texas, Section A. objection and admitted same as evidence. We have carefully examined the statement of facts as to the evidence given by this wit-I. ness, and find that in other portions of his evidence, evidently in answer to other interrogatories, he testified fully as to the mental condition of Baldwin at and before the time of the trial, and stated that he appeared to be strong physically, but was wrong mentally. Therefore there could have been no injury to the rights of plaintiff in error under these conditions. [5] Plaintiff in error complains of the action of the trial court in admitting in evidence over its objection declarations of defendant in error as to his physical condition made to a medical expert to whom he went for the purpose of making the expert a witness in his behalf. Defendant in error Baldwin's statement, made to the doctor on the occasion of the examination made of him by the doctor, as related by the doctor as a witness, was as follows: "In the examination I began with his eyes. In so far as the reaction was concerned, his eyes appeared normal, but he complained of some dizziness when standing with eyes closed. The superficial sensation of the skin and muscles, as far as I could get from him, appeared to be normal, with some pain complained of about his shoulders and back, and particularly about the middle and lower part of his spine, Strictly construed against party resorting thereto. Garnishment is a harsh remedy and entirely statutory, and will be strictly construed against party resorting thereto. 2. Garnishment 243 bond replaces garnishee. A surety on replevy bond replaces garnishee, and can urge any defense that garnishee could assert. Surety on replevy 3. Garnishment 7-Final judgment in original case necessary, before writ can be legally issued. Before writ of garnishment after judgment can legally issue, there must be a final judgment in original case, and if such judgment falls, garnishment proceeding falls with it. 4. Garnishment 7-Judgment for cross-defendant held not final judgment warranting garnishment. A judgment in favor of defendant on his cross-action against codefendant, without disposition of remainder of suit, held not a "final judgment" constituting sufficient basis for issuance of writ of garnishment under Rev. St. art. 271, subd. 3, and hence whole garnishment proceedings, including judgment against surety on replevy bond, were void and not validated by final judgment subsequently rendered. (273 S. W.) Error to Court of Civil Appeals of Eighth | day that the affidavit was made, and on Supreme Judicial District. Action by the Farmers' State Bank & Trust Company against J. E. Miller and others, in which E. A. Keith was made party defendant and the New Amsterdam Casualty Company became surety on replevy bond. From a judgment of the Court of Civil Appeals (260 S. W. 695), affirming a judgment in favor of Keith against the New Amsterdam Casualty Company, the latter brings error. Reversed and rendered. June 7, 1921, the Fensland Oil Company made its answer in garnishment, showing that it was indebted to J. E. Miller in approximately the sum of $20,000. J. E. Miller replevied the claim garnished by Keith, by filing his replevy bond with plaintiff in error, New Amsterdam Casualty Company, as surety. dered judgment in favor of the bank against On October 12, 1921, the district court renMiller and his sureties on the note sued on by the bank, and also for a foreclosure of the chattel mortgage lien referred to. No Albert B. Hall, of Dallas, for plaintiff in reference was made in this judgment to the controversy between Keith and Miller. On Burkett, Orr & McCarty, of Eastland, for November 28, 1921, at the same term of court. defendants in error. error. CHAPMAN, J. The Farmers' State Bank & Trust Company of Gorman, Texas, in one of the district courts of Eastland county, brought suit against J. E. Miller and his two sureties on a promissory note in the sum of $5,084.60, executed by Miller and the sureties in favor of the bank, and to foreclose its lien given in a chattel mortgage by Miller to the bank to further secure the payment of the note mentioned. Miller, in his answer, alleged that he had entered into a contract with one E. A. Keith for a sale to him of the property covered by the chattel mortgage, and that as a part of the consideration therefor the said Keith assumed the payment of the promissory note held by the bank against Miller and his sureties, and, at the suggestion of Miller, Keith was made a party to the suit. Defendant Keith answered the allegations made by Miller, and alleged that he had executed a certain note to Miller and paid him certain cash, and alleged that Miller was indebted to him in a large sum and prayed for such sum, and the cancellation of the note executed by him in favor of Miller. On at which the last-mentioned judgment was The issue raised by plaintiff in error in this court is that the judgment of the trial court of May 12, 1921, in favor of Keith was not a final judgment and could not be the basis for the issuance of a writ of garnishment, and that there being no basis for the issuance of the writ, all the garnishment proceedings were void, and therefore it was erOn May 12, 1921, the district court en- ror to render a summary judgment in gartered its judgment continuing the cause as nishment against plaintiff in error. between the bank and Miller, so that citation [1] Garnishment is a harsh remedy, is enby publication might be had on one of Mill-tirely statutory, and will be strictly construer's sureties, but in the judgment held that Keith was entitled to a hearing on his crossaction against Miller, and after hearing evidence as to such cross-action, rendered judgment in favor of Keith against Miller in the sum of $5,000. Miller appealed from this judgment, and his appeal was dismissed by the Court of Civil Appeals of El Paso because there was no final judgment in the cause in the district court. Miller v. Farmers' State Bank & Trust Co. (Tex. Civ. App.) 241 S. W. 540. On May 14, 1921, Keith made affidavit that he had recovered judgment against Miller on the 12th day of May, 1921, for the sum of $5,000, and prayed for a writ of garnishment against the Fensland Oil Company. Upon this affidavit, which is in proper form, the writ of garnishment was issued on the same ed against the party resorting to the remedy. 28 Corpus Juris, 26; Freeman v. Miller, 51 Tex. 443; Jemison v. Scarborough, 56 Tex. 358; Scurlock v. Railway Co., 77 Tex. 478, 14 S. W. 148. [2] A surety on a replevy bond takes the place of a garnishee and can urge any defense that the garnishee could assert. Lumber Co. v. Bank, 91 Tex. 95, 41 S. W. 64; Mitchell v. Bloom, 91 Tex. 634, 45 S. W. 558. [3] There must be a final judgment in the original case before the writ of garnishment can legally issue, and if the judgment in the original case falls, the garnishment proceedings fall with it. To sustain this statement, we quote the following: "As the whole object of garnishment is to reach effects or credits in the garnishee's hands, so as to subject them to the payment of such Martin v. Crow, 28 Tex. 614: judgment as the plaintiff may recover against | court may attempt to render final judgment the defendant, it results necessarily that there against the latter." can be no judgment against the garnishee, until judgment against the defendant shall have been recovered. The judgment against the defendant must be a lawful and valid one; if it be void, the judgment against the garnishee is also void. And it must be a final one." Drake on Attachment, p. 405. "But if the court have no jurisdiction of the subject-matter, or if jurisdiction be exercised without any legal foundation being laid for it, the whole proceeding is void, and the defendant's property is not alienated through it. His rights exist, to every intent, as if the proceeding had never taken place." Drake on Attachment, p. 622. "Inasmuch as a valid judgment against the principal defendant is essential both as a foundation for a judgment against the garnishee, and for his protection, the garnishee is entitled to assert any defenses or objections to the proceedings against the principal defendant whch are of a jurisdictional character, or which would render the judgment void. This is clearly so where the statute makes a valid judgment against defendant a prerequisite to recovery against the garnishee." 28 Corpus Juris, 276. The first and third quotations apply more specifically to garnishment before judgment, but the general principles stated apply also to garnishment after judgment. Some phase of the text is sustained in each of the following cases. Haggerty v. Ward, 25 Tex. 144; Wiggins v. Anderson, 1 Tex. 75; PerryRice Grocery Co. v. Craddock Grocery Co., 34 Tex. Civ. App. 442, 78 S. W. 966; Timm v. Stegman et al., 6 Wash. 13, 32 P. 1004; Rowlett v. Lane, 43 Tex. 274; Edrington v. Allsbrooks, 21 Tex. 186; Horst v. Insurance Co., 73 Tex. 67, 11 S. W. 148; Shoemaker v. Pace (Tex. Civ. App.) 41 S. W. 498. [4] From the foregoing it appears that the whole case depends on whether the judgment, of May 12, 1921, in favor of Keith and against Miller, was such a judgment as would be a sufficient basis for the issuance of a writ of garnishment under subdivision 3 of article 271, Revised Civil Statutes. From the provision of said subdivision 3, and from the authorities quoted, we believe the judgment mentioned in said subdivision means a final judgment upon which execution could issue. As to what is a final judgment, we quote from Wootters v. Kauffman, 67 Tex. 496, 3 S. W. 468: "Until a final judgment is rendered in the court below, this court has no jurisdiction of When the whole of the matter in the cause. controversy is finally disposed of as to all the parties, then there is a final judgment, and not before, from which an appeal or writ of error can be taken." These authorities clearly show that the judgment, of May 12, 1921, in favor of Keith and against Miller, was not a final judgment, and therefore it was not such a judgment that execution could be issued under it, and we believe was not such a judgment as could be the basis for the issuance of a writ of garnishment under the provisions of subdivision 3, of article 271, Revised Civil Statutes. There being no proper basis for the issuance of the writ of garnishment, the whole garnishment proceedings, including the judgment against plaintiff in error, are void. The final judgment of December 1, could not relate back and give validity to the garnishment proceedings. The judgment upon which the writ of garnishment was based, being a part of the record and showing upon its face that it was not a final judgment, the facts as to the basis for the issuance of the writ of garnishment could not be changed on another trial. We therefore recommend that the judgment of the district court and Court of Civil Appeals be reversed, and that judgment be here rendered in favor of plaintiff in error, New Amsterdam Casualty Company. CURETON, C. J. Judgments of the district court and Court of Civil Appeals both reversed, and judgment rendered for the plaintiff in error. SOUTHERN SURETY CO. et al. v. WEAVER et al. (No. 666-4177.) (Commission of Appeals of Texas, Section A. June 27, 1925.) 1. Master and servant 401-Pleading held to state cause of action for compensation. "Our statutes provide that there shall be but one final judgment in any case. It follows from this that if there be several defendants to a suit, no final judgment can be rendered against one until it is rendered against all, however independent of each other their respective defenses may be. Hence a new trial as to one is a new trial as to all, as has been decided by this court in Long v. Garnett, 45 Tex. 400; and a continuance as to one defendant is a continuance as to the others, although the Allegations, that deceased employee received his injuries while engaged in the scope of his employment and acting within the scope of his duties, or while engaged in course of employment, held to be sufficient statement of cause of action for compensation, under Workmen's Compensation Act (Vernon's Ann. Civ. St. Supp. 1918, arts. 5246-1 to 5246-91), being statements of facts, and not mere conclusions of pleaders. (273 S.W.) 2. Master and servant 401-Compensation | to his father, Weaver left surviving him two claimants need not allege and prove negli- minor brothers, Clyde Weaver and Gilbert gence. Weaver. Those claiming compensation do not have to allege and prove that the deceased was injured through negligence of employer. 3. Evidence discretionary. Upon a finding by the Industrial Accident Board, that the father of E. E. Weaver was not dependent on him, and that the two mi18-Application of res gestæ nor brothers were dependent, the compensa Rule, as to what is res gestæ, is very latitudinous, and its application must be left largely to judicial discretion of trial court in each particular case. 4. Appeal and error 970 (2) Finding of trial court, as to res gestæ, not disturbed on appeal. Where the trial court in his discretion held that statement of deceased, about an hour after accident, and while in doctor's office suffering intense pain, was res gestæ, while question was one of law, the Commission of Appeals was not warranted in holding action erroneous. tion for the death of E. E. Weaver, under the provisions of the Employer's Liability Act, was awarded to the two minor brothers. The Southern Surety Company, and Andrew Weaver and his wife brought suits to have the award of the Industrial Accident Board set aside. The two suits were combined. Andrew Weaver and Fanny Weaver, in their petition, alleged that E. E. Weaver, deceased, was in the employ of C. C. Cannon, a drilling contractor in the capacity of boiler fireman, and that while engaged in the scope of his employment, and while acting within the scope of his duties as a boiler fireman, 5. Master and servant 386(5)—Stepmother he sustained serious burns, scalds, and inheld not entitled to share in award of com-juries which resulted in his death on the pensation. Under Vernon's Ann. Civ. St. Supp. 1918, art. 5246-15, awards of compensation, under Workmen's Compensation Act, are governed by the law of descent and distribution, and stepmother is not entitled to share in award, where deceased left father and brothers. same day that the injuries were received. Clyde Weaver and Gilbert Weaver in their answer alleged that the injuries which caused the death of E. E. Weaver were received by him while he was in the employ of C. C. Cannon, a drilling contractor, in the capacity of boiler fireman, and while engaged Error to Court of Civil Appeals of Ninth in the course of his employment as such emSupreme Judicial District. ployee. Roy Weaver, brother of E. E. Weaver, tesCombined actions by the Southern Surety tified that his brother, E. E. Weaver, an Company against Gilbert Weaver and anoth-hour after the accident, and while in the er, and by Andrew Weaver and wife against the Southern Surety Company and others, to set aside an award of the Industrial Accident Board for the death of E. E. Weaver, em ployee. Judgment awarding compensation was affirmed by the Court of Civil Appeals (260 S. W. 622), and the Surety Company and others bring error. Affirmed. C. A. Lord and O. M. Lord, both of Beaumont, for plaintiffs in error Andrew Weaver and wife. doctor's office, and while suffering intense pain from being scalded all over, told him how the accident occurred, and Roy Weaver was permitted to testify as to what his brother told him at that time. The trial court found that the father and two minor brothers were dependent on the deceased for support, and awarded the compensation one-half to the father and one-half to the two minor brothers jointly. The issues now before this court are: McGregor & Burr, of Houston, for other First, as to whether the allegations of the plaintiffs in error. parties claiming compensation, as to how the E. B. Pickett, Jr., of Liberty, for defend- deceased was injured, are good against a speants in error. cial exception that the pleadings do not set out the facts in the manner and way in CHAPMAN, J. In August, 1922, C. C. Can- which the said Weaver was alleged to have non was engaged in drilling for oil in Liber- been injured, and as a result of which inty county, and under the Employer's Lia-juries he died with that legal certainty that bility Act (Vernon's Ann. Civ. St. Supp. 1918, arts. 5246-1 to 5246-91) carried insurance on his employees with the Southern Surety Company. On August 9, 1922, E. E. Weaver, an unmarried man, one of Cannon's employees, while acting in the scope of his employment, received injuries in a boiler explosion, from the effect of which he died in about 10 hours. At the time of the accident, Weaver's mother was not living, and his father had married again. In addition would show that he received such injuries in the course of his employment, or as to enable plaintiff to prepare its defense and to meet defendant's proof. Second, as to whether the statement made by deceased to his brother under the conditions above named was res gestæ. Third, as to whether the court should have awarded the entire compensation to the father of the deceased or apportioned it in the manner that it did. [1-3] In article 5246-82, 1918 Supplement For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |
