1. Insurance Policy — Pleading.
In a suit upon a fire insurance policy the defendant, relying upon a condition of the policy requiring proof of loss to be made within sixty days, should plead the condition and breach. In the absence of such allegations the answer is defective, and upon such pleadings the question does not arise whether the Act of 1879, page 83 (Revised Statutes, 3089), prescribing that in case of total loss the policy shall be held a liquidated demand, rendered nugatory that clause in the policy. (Pp. 213, 214.)
2. Jurisdiction — Garnishment.
Garnishment issued under a local (Texas) judgment and was served upon the local agent of the New York Fire Insurance Company. Subsequent to the service of the writ, garnishments were served from courts in New York and in Rhode Island. The insurance company, in answer, urged the subsequent garnishments as reasons for avoiding liability in the Texas court: Held, that having acquired jurisdiction of the fund before the rights of the foreign judgment creditors attached, the local (Texas) court had jurisdiction to adjust the rights of the parties to such fund. (P. 214.)
GAINES, CHIEF JUSTICE.
We concur with the Court of Civil Appeals in holding that the second paragraph of the applicant's answer in the trial court does not aver that by the terms of the policy the making of the proof of loss within sixty days was a condition precedent to a recovery, and therefore think that the court was correct in deciding that the demurrer to that pleading was properly sustained. We are not however prepared to say that the effect of the statute referred to in the opinion was to render such a provision, if it had been contained in the policy, nugatory. However that may be, the ruling upon that part of the answer should have been the same. We therefore find it unnecessary to pass upon that question.
This proceeding was commenced by a judgment creditor of E.E. Chase, the defendant in the application, to subject the sum alleged to be due upon the policy to the payment of his judgments. The writ of garnishment was served on 27th day of July, 1893. The fourth paragraph of the answer of the garnishee, the applicant here, alleges as a reason why a recovery should not be had against it, that two writs of garnishment had been issued and served upon it, one on the 7th day of August, 1893, in a court of New York, and the other on the 10th day of the same month in a court of Rhode Island. Under this state of facts, we are of the opinion that, since the writ in this case was served first, the District Court of Tarrant County first acquired jurisdiction over the fund, and had the power and that it was its duty to determine the right to it as between the parties to this suit. For that reason we think the demurrer to the fourth paragraph to the answer was properly sustained.
The proper result upon the questions presented having been reached in the trial court and in the Court of Civil Appeals, the application for the writ of error is refused.
Refused