Volume 253 — South Western Reporter

<p>Appeal from District Court, Dimmit County ; J. F. Mullally, Judge.</p> <p>Action by E. H. Cunningham and others against R. H. Price. Judgment for defendant, and plaintiffs appeal.</p>

<p>Appeal from District Court, Navarro County; Hawkins Scarborough, Judge.</p> <p>Action by the First National Bank of Dawson against W. E. Berry and others. Judgment for plaintiff, and defendants appeal.</p>

<p>Appeal from District Court, Harris County; W. E. Monteith, Judge.</p> <p>Action by John Weiner, trustee, against the First National Bank of Houston.' Judgment for plaintiff, and defendant appeals.</p>

<p>1. Garnishment 143 — Answer not disclosing whether garnishee had possession of prop1-erty of defendant or had been indebted to defendant during interval between service of writ and filing of answer held defective.</p> <p>Garnishee’s answer to writ in the form prescribed by Rev. St. 1911, art. 276,. stating merely that the garnishee did not have possession of property belonging to the defendant, and was not indebted to the defendant at the time of the service of the writ, without disclosing whether the garnishee was in possession of property belonging to the defendant, or was indebted to the defendant at the time the answer was filed, or had been in possession of defendant’s property or indebted to the defendant between the service of the writ and the filing of the ansWer, held defective.</p> <p>2. Garnishment<§=>183 — Judgment 7(II) — Personal judgment against garnishee proper, on defective and evasive answer, though defendant was nonresident.</p> <p>Where garnishee’s answer was defective and evasive, the court was warranted in rendering a personal judgment against the garnishee, and this though garnishee was a nonresident in view of Rev. St. 1911, art. 282, as amended by Acts 37th Leg. J1921) e. 105 (Vernon’s Ann. Civ. St. Supp. 1922, art. 282).</p> <p>3. Garnishment <⅝=>139 — Garnishee’s answer construed against him.</p> <p>Garnishee’s answer will be taken most strongly against him. -</p>

<p>1. Insurance <&wkey;l44(l) — Insured acquiescing, in change of policy and accepting additional benefits held liable for additional premiums.</p> <p>Where one insured against liability for injuries to his employees was informed by letter that, due to additional liabilities under the Workmen’s Compensation Act (Vemon’s Sayles’ Ann. Oiv. St. 1914, arts. 5246h-5246zzzz), he would be obliged to pay additional premiums, and he acquiesced in the change and received benefits under it, he became liable for the additional premiums.</p> <p>2. Limitation of actions &wkey;>24(2) — Action on contract for delinquent insurance premiums held based on written contract.</p> <p>Where insurer by letter notified insured that, becaúse of additional liability under the Workmen’s Compensation Act (Vernon’s Sayles’ Ann. Civ. St. 1914, arts. 5246h-5246zzzz), the amount of premiums would be increased, and insured made no objection, 'held, that the cause of action for delinquent insurance premiums was based upon a written contract acquiesced in and acted upon by defendant, and hence was not barred by the two-year statute of limitations.</p> <p>3. Corporations <&wkey;672(7) — Assignee of foreign corporation suing on contract made in state must both allege and prove a permit to cfo business.</p> <p>A foreign corporation suing on a contract made in the state must allege and prove that it had a permit to do business required by Vernon’s Sayles’ Ann. Civ. St. 1914, art. 1318, and it cannot transfer to another corporation any greater right than it had to enforce its cause of action; and hence an allegation that it has a permit, without proof to sustain it, cannot support a judgment in favor of its assignee, and the statute providing that an allegation of incorporation shall be taken as true unless denied under oath cannot be extended and applied to the allegation as to a permit.</p> <p>On Motion for Rehearing by Defendant in Error.</p> <p>4.Insurance <&wkey;26 — Action by assignee of foreign insurance company held not precluded because permit to do business in state not shown.</p> <p>In view of Vernon’s Sayles’ Ann. Civ. St. 1914, art.. 1319, exempting foreign corporations that are required by law to procure certificates of authority to do business from the commissioner of insurance and banking from compliance with article 1318, requiring foreign corporations to secure permits to do business within the state, an action by the assignee of a foreign insurance company for premiums due is not barred merely because such company’s permit to do business is not proven.</p>

B. Keith, Judge. Suit by Ida W. Veale and others against J. M. Ward and the Bank of 'Mineral Wells. Prom an order- appointing a receiver of his property and another restraining the Bank from paying out deposit money or other personal property to defendant or his order, defendant Ward appeals.

<p>1. Courts <&wkey;478 — Court cannot interfere with another court’s custody of property through receiver.</p> <p>No court can interfere with the custody of property held by another court through a receiver. '</p> <p>2. Courts <&wkey;475(I) — Acquisition of jurisdiction by one court precludes determination of material issues by another court.</p> <p>Under the rule of comity between courts, to avoid embarrassing conflicts, secure uniformity of decisions, and discourage repeated litigation of the same questions, the acquisition of jurisdiction- of the parties and cause of action by one court precludes any other court from determining the material issues involved, except as permitted by statute or judicial decisions, as in the case of other matters very closely connected with those before the first court.</p> <p>3. Courts <&wkey;>478 — Receivers <&wkey;>!74(l) — May sue or be sued in any court without leave of appointing court, but possession, control, and management of property cannot be disturbed.</p> <p>Under Rev. St. 1911, art. 2146, and in view of article 2133, and other statutes relative to suits by and against receivers, and enforcement of judgments against them, a receiver may sue or be sued in his official capacity in any court without first obtaining leave of the court appointing him; but the former may not make any order, or take any action which will disturb the receiver’s possession, control, and management of the property in his hands, or conflict with any order or direction relative thereto by the court- appointing him.</p> <p>4. Receivers <&wkey;l74(t) — Attorney’s right to foreclose lien on property in receiver’s hands by suit in another county than that of court appointing receiver not affected by latter’s fears of Inability to guarantee titles of purchasers of property.</p> <p>As all persons must take notice of the law, a receiver’s fears of inability to secure guaranties of title, to which purchasers of lots held by him were entitled, because of a suit in a court of another county than that of the court appointing him to establish and foreclose an equitable lien on the lots for attorney’s fees, must give way to the more important right of the citizen, under Rev., St. 1911, art. 2146, to sue in a court having jurisdiction of the cause in the county of his choice without having first obtained leave from the court appointing the receiver.</p> <p>5. Receivers <&wkey;l77 — -Venue of suit to foreclose lien on property held by receiver appointed by co-urt of another cou'nty and adjudication of debt and lien held for court in which brought.</p> <p>The venue of a suit to establish and foreclose -an equitable lien for attorney’s fees on property in the hands of a receiver appointed by the court of another county, and questions involved in determining the existence .vel non of the debt and lien, held for the court wherein the suit was brought; mere adjudication of the debt and lien, with foreclosure thereof, constituting no tangible or effective obstruction to the jurisdiction of the court appointing the receiver to' execute the judgment, and not interfering with the receiver’s possession of the property.</p> <p>Buck, J., dissenting in part. •</p>

<p>Appeal from District Court, Archer County; H. R. Wilson, Judge. ,</p> <p>Suit by F. M. Power against W. D. Andrews and others, as trustees of the Archer City Independent School District No. 1. From a decree denying a temporary injunction, plaintiff appeals.</p>

<p>Appeal from District Court, Jack County; E. O. McKinsey, Judge.</p> <p>Action by A. J. Collier against J. E. Vaden. Judgment for plaintiff, and defendant appeals.</p>

<p>Appeal from District Court, Wichita County; P. A. Martin, Judge.</p> <p>Suit by the Omar Gasoline Company against H. L. Graham. Prom an order granting a temporary injunction, defendant ap-</p> <p>peals.</p>

<p>Appeal from District Court, Young County; H. R. Wilson, Judge.</p> <p>Action by H. M. Ford and others against the Wichita Falls & Southern Railway Company. From a judgment for plaintiffs in insufficient amount, they appeal.</p>

<p>Appeal from District Court, Stephens County ; W. R. Ely, Judge.</p> <p>Suit by George J. Weisher against O. W. Ford and others. Judgment for plaintiff, and defendant Ford appeals.</p>